(b) in relation to documents 1, 2, 7, 8, 9, 10, 11, 17, 18, 19, 20, 45 and 49, the Tribunal finds that these documents are exempt pursuant to subsections 34(1)(c) and 36(1) of the Freedom of Information Act 1982, and that the exemption under subsection 34(1)(d) has not been properly claimed in relation to these documents.

FREEDOM OF INFORMATION - access to documents - documents relating to bulk billing - scope of request - claimed exemptions - irrelevant - legal professional privilege - Cabinet documents - internal working documents - public interest considerations

Freedom of Information Act 1982 ss 22, 34, 36, 42

Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; (2003) 78 ALD 645

Whitlam v Australian Consolidated Press (1985) 60 ACTR 7

Re Anderson and Department of Special Minister of State (No 2) (1986) 11 ALN 239

Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2000] FCA 453; (2000) 171 ALR 379

National Tertiary Education Industry Union v Commonwealth of Australia [2001] FCA 610; (2001) 111 FCR 583

Re Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512

Re Waterford and Department of Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588

Re Zacek and Australian Postal Corporation [2002] AATA 473

Re Hart and Commissioner of Taxation [2002] AATA 1190

Harris v Australian Broadcasting Corporation [1984] FCA 8; (1984) 51 ALR 581

Vaugh v Rosen (1975) 523 F(2d) 1136

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49

Re Wallace and Director of Public Prosecutions [2003] AATA 119

Re Russell Island Development Association Inc and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683

Re Attorney-General's Department and Cockcroft (1986) 12 ALD 468

Re Citibank Limited [1989] 1 Qd R 516

On 23 June 2003, the applicant sought access to documents, under the Freedom of Information Act 1982 ("the Act"), that related to the reform of the Medicare system, including bulk billing. The applicant's request only related to documents which were created after 1 February 2003.

On 18 July 2003, a delegate of the respondent, the Department of Health and Ageing ("the Department") wrote to the applicant seeking clarification of his request, confirming that the applicant was only interested in documents that were relevant to the A Fairer Medicare Package.

On 15 December 2003, a delegate of the respondent made a decision in relation to the applicant's request. The delegate identified 149 documents as relating to the applicant's request, and claimed that each document was considered exempt from release pursuant to various sections of the Act, including sections 34 and 36.

4.

On 16 January 2004, the applicant sought an internal review of that decision. On 5 April 2004, on reconsideration, the respondent varied the original decision, pursuant to section 54(1G)(2) of the Act, and decided to:



release eleven documents in full and four documents with some deletions;



seek further advice in relation to four of the documents (110-113); and



affirm the original decision in relation to the remaining 107 documents.

On 13 May 2004, the applicant lodged an application for review of the respondent's decision with the Tribunal.

On 20 May 2004, the respondent made a decision in relation to the outstanding four documents (numbered 110 to 113). The respondent decided not to release the documents on the grounds they were exempt pursuant to section 36 of the Act. The application for review proceeded on the basis that the application also relates to these four documents.

On 6 August 2004, the respondent made a further decision in relation to five further documents that had been discovered which it considered fell within the scope of the applicant's FOI request. A delegate of the respondent determined that one of the documents should be released to the applicant in full, but that the remaining four documents were exempt from release pursuant to sections 34(1) and 36 of the Act.

On the same date, under separate cover, the respondent wrote to the applicant advising that a review of the documents had been conducted and that a decision had been made to release 71 of the documents with some parts deleted. The respondent maintained the claimed exemptions, under sections 34 and 36 of the Act, in relation to the deleted material. The respondent also made minor variations to the grounds for exemptions claimed in relation to several other documents.

The application for review proceeded before the Tribunal on 23 September 2004. At the hearing, the applicant represented himself and the respondent was represented by Mr Logan SC and Ms Mellifont of counsel. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the following documentary exhibits:

Exhibit 1 Affidavit of Myra Patricia Croke, dated 6 August 2004

Exhibit 2 Affidavit of Myra Patricia Croke, dated 21 September 2004

Exhibit 3 Affidavit of David Andrew Learmonth, dated 6 August 2004

Exhibit 4 Affidavit of David Andrew Learmonth, dated 20 September 2004

Exhibit 5 Document entitled "The Commonwealth as a Model Litigant"

Exhibit A Affidavit of Julia Gillard, undated.

At the conclusion of the hearing, the parties provided the Tribunal with written submissions. The Tribunal has not required copies of the documents the subject of the dispute in this case to be produced. Instead, the Tribunal considered the question of access on the basis of the affidavit material and the parties' submissions.

David Andrew Learmonth made two affidavits, dated 6 August 2004 (Exhibit 3) and 20 September 2004 (Exhibit 4). Mr Learmonth is the First Assistant Secretary of the Primary Care Division of the Department of Health and Ageing. His responsibilities in this position include leading policy development; managing programs, financial resources and staff; and representing the government, Minister and Department in the area of primary care.

Mr Learmonth annexed a copy of the 5th edition of the Cabinet Handbook to his affidavit of 6 August 2004, and explained that the Handbook sets out the principles and procedures by which the Cabinet system of executive government operates. The Handbook relevantly provides:

"Forms of Cabinet business

4.1 Business comes before Cabinet or its committees in the following forms:

(a) submissions and memoranda;

(b) matters without submissions (ie 'under the line' matters) as agreed by the Prime Minister - usually only matters of genuine urgency requiring immediate Cabinet discussion (but not so complex as to require a submission) or appointments which the Prime Minister wishes to have discussed; and

(c) minutes for endorsement by Cabinet, either from Committees or as drafts following ten-day ministerial consideration (see paragraph 4.4B).

...

Preparation of Cabinet submissions and memoranda

4.5 Cabinet submissions and memoranda are strictly limited to 10 pages, including the cover sheet, recommendations/conclusions, body and any media release, with the co-ordination comments contained in an additional attachment. Other attachments may be added by must not be attached to the submission or memorandum ...

...

Handling of business without submission

4.16 Ministers may, by writing to the Prime Minister, seek his agreement to raise particular matters in Cabinet without lodging a formal submission. The only matters dealt with 'under-the-line' in this way are:

(a) urgent matters of a procedural rather than policy nature;

(b) urgent policy matters which are sufficiently straightforward not to require a formal Cabinet submission and which cannot be resolved in another way...; and

(c) appointments....

4.17 Before deciding to seek the Prime Minister's approval to raise a matter without submission ... ministers need to consider carefully whether the particular circumstances warrant the adoption of this procedure rather than the preparation of a submission which would then allow their colleagues full notice of the proposal.

4.18 Ministers' letters to the Prime Minister asking that a matter be raised 'under-the-line' should:

(a) include sufficient information on the subject and background to form the basis for Cabinet discussion; and

(b) indicate whether the matter falls within the guidelines at paragraph 4.16(a) or (b) and the reasons for urgency.

...

Purposes of Consultation

5.1 Good policy requires informed decisions. Informed decisions require agreement on facts and knowledge of the opinions of those who have expertise in the subject matter. Consultation provides the means of obtaining the information and views required. Importantly, a careful balance needs to be struck between a proper and adequate consultation process and adherence to the strict 'need-to-know' principle. One object of consultation in the development of proposals is to ensure that, as far as possible, differences are resolved in advance of Cabinet consideration or, if resolution is not possible, differences are identified and set out in a way that will facilitate informed decision-making.

5.2 Ministers bringing forward submissions are responsible for ensuring that the consultation necessary to enable a fully informed decision to be taken occurs at both ministerial and official levels. It si particularly important that there be agreement regarding the factual matters (that is, matters that are not open to interpretation or differences of opinion) which will form the basis of Cabinet discussions. The Cabinet Secretariat has been instructed to reject submissions where there is disagreement about facts.

...

5.4 Apart from the consultation requirements outlined above, all submissions should have been the subject of consultation among departments that have a proper interest in the subject matter (ie where the issues impinge upon a department's core functions). The minimum requirement is that interested departments be given the opportunity to provide a 'co-ordination comment' on the submission after it has been approved by the sponsoring minister. That 'coordination comment' will then be included in the submission as an attachment. ...

...

5.6 Co-ordination comments should be as short as possible, should draw attention to any significant risks and administrative consequences for the department and should state views, with the reasons for holding them, succinctly. ...

5.7 It is for departments to settle with their ministers the extent to which ministers may which to clear their department's co-ordination comments or otherwise be drawn into the consultation process. Co-ordination comments are recorded as the views of the department providing them, are intended to add to the information available to the Cabinet in its deliberative processes and should not be seen as binding ministers nor necessarily reflecting their views. ...

...

Who should be consulted?

5.15 Those preparing submissions need to be alert to the special responsibilities of portfolios that may be affected by proposals... They also need to give careful consideration in each case to ensuring the right balance is struck between obtaining the views of departments that have a proper interest in the proposals and circulating the submissions too widely - thereby increasing the risk of premature disclosure.

...

Definition of Cabinet documents

7.1 Cabinet documents are to be held separately from the other working documents of government administration and must be destroyed when no longer in day-to-day use... Subject to the 30-year-rule, Cabinet documents are not available to governments other than those which created them. Special provisions of the Freedom of Information Act 1982 (in particular, s. 34) apply to them. Any unauthorised disclosure of them damages the openness and frankness of discussions in the Cabinet Room.

7.2 For the purposes of this handbook and consistent with definitions employed under the Freedom of Information Act 1982, Cabinet documents include:

(a) business lists for meetings of Cabinet and Cabinet committees;

(b) Cabinet programmes and notices of meetings;

(c) Cabinet submissions and memoranda, including copies lodged with the Cabinet Secretariat and copies held elsewhere;

(d) corrigenda to submissions and memoranda;

(e) reports and attachments to submissions and memoranda (whether or not actually attached) which have been brought into existence for the purpose of being considered by Cabinet;

(f) schedules circulated for ministers' information, for example schedules of appointments, endorsements or of other matters without submission;

(g) any papers circulated by ministers in the Cabinet room related to matters under discussion by the Cabinet;

(h) legislation proposal forms and papers required for the legislation approval process, which clears bills prior to their introduction in Parliament, including Parliamentary Counsel's memoranda, legislation profiles and draft bills and explanatory memoranda;

(i) correspondence between ministers and the Prime Minister which is submitted to Cabinet or proposes matters (including appointments) to be raised in Cabinet without submission;

(j) Cabinet and Cabinet committee minutes and draft minutes prepared for consideration and endorsement under the ten-day ministerial consideration process;

(k) Documents of the Cabinet Secretariat including Cabinet notebooks or other material that in any way records the deliberations of Cabinet; and

(l) copies of, or extracts from, documents referred to in (a) to (k) above.

7.3 While the definition of Cabinet documents does not include documents such as drafts of submissions and memoranda, briefing materials and correspondence related to these, and correspondence and notes disclosing the outcome of Cabinet deliberations, special care is also to be taken in the handling of these documents (see paragraphs 7.15 and 7.16).

...

7.15 Special care must also be exercised in relation to certain other documents. These include drafts of Cabinet documents as well as briefing material, notes, minutes, schedules and correspondence...concerning matters which are to be put before Cabinet or which have been before Cabinet.

7.16 Such documents, like Cabinet documents proper, must be handled strictly in accordance with the 'need-to-know' principle. All of them may refer specifically to submissions, memoranda, or minutes by title, number or date, or reveal the nature of Cabinet deliberations. If they do so, they must at least be classified 'Cabinet-in-Confidence'. While these documents may not be Cabinet documents proper, where their contents reveal the deliberations of Cabinet, they attract the section 34 exemption from disclosure under the Freedom of Information Act 1982. They may also be exempt under other provisions of the FOI Act, such as section 36 relating to internal working documents."

Mr Learmonth states that the confidentiality and consultation procedures in the Handbook were followed by the Department in relation to the development of a Cabinet submission relating to the Medicare system.

Myra Patricia Croke made two affidavits, dated 6 August 2004 (Exhibit 1) and 21 September 2004 (Exhibit 2). Ms Croke is the Assistant Secretary of the Cabinet Secretariat in the Department of Prime Minister and Cabinet.

During her employment with the Cabinet Secretariat, Ms Croke has attended many sessions of Cabinet, including acting as a notetaker during Cabinet meetings. Ms Croke explains that the notes taken during Cabinet meetings are not a complete record of what was said in the Cabinet room, but rather act as a record of the decisions of Cabinet on matters discussed in order to prepare official Cabinet minutes.

Ms Croke states that, from her experience and personal observations, it is usual for Ministers attending Cabinet meetings to bring briefing notes from their departments and to quote from those briefs during the meeting. As such, she opines that such briefing papers, by their very nature, may give insight into the deliberations of Cabinet.

Ms Croke also states that documents to be considered by Cabinet:

"...usually take the form of Cabinet submissions, which are made to Cabinet by Ministers; or Cabinet memoranda which are prepared by departments or agencies to provide information, analysis and opinions to Cabinet, often in response to a request by Cabinet; or matters without submission. Matters without submission usually take the form of a letter from a Minister to the Prime Minister, perhaps with an attached paper, raising matters of genuine urgency requiring immediate Cabinet consideration." (at par 12 of Exhibit 1)

Ms Croke states, from her experience and personal observations, that a Minister may be requested to provide additional information in relation to a matter arising from Cabinet's deliberations on the matter. Depending on the intended timing of Cabinet's further consideration of the matter, the additional information may be provided in the form of a further submission or memorandum or as a matter without submission, such as a letter from the Minister to the Prime Minister as set out in the quote above.

Julia Gillard provided the Tribunal with an undated affidavit (Exhibit A) in support of the applicant's application. Ms Gillard, at the time of the hearing, was the Federal Opposition spokesperson for health.

Ms Gillard explained that the provision of bulk billing was one of the major features of Medicare and that it allowed people to consult doctors when they needed to by providing free or subsidised treatment by medical practitioners. Ms Gillard states that all Australians are interested in and affected by bulk billing, and that bulk billing was going to be a major issue at the then upcoming Federal election. She states that any government information in relation to bulk billing would assist the Australian electorate in making a more informed assessment about bulk billing and the respective policies of the political parties. In Ms Gillard's view, the release of such information would also improve government accountability.

As Opposition health spokesperson with extensive experience in public policy, Ms Gillard opines that the release of the documents in this case is overwhelmingly in the public interest in that it would allow the public to better assess the quality of the government's bulk billing reforms and would allow improved debate on reform options.

A person has an enforceable right of access to documents held by a Minister or agency (such as the respondent) pursuant to section 11(1) of the Act. The right of access is not affected by the applicant's motive for seeking access (section 11(2)).

The respondent may invoke certain exemptions provided for in Part IV of the Act to deny access to a document, or to provide a document with exempt material deleted. In this case, the respondent has claimed a number of exemptions in relation to the documents the subject of the applicant's request, including claims under sections 22, 34, 36 and 42 of the Act. The schedule prepared and annexed to David Learmonth's affidavit of 20 September 2004 (Exhibit 4), sets out the exemptions claimed in relation to the 154 documents identified by the respondent as possibly falling within the scope of the applicant's request.

The respondent contends that two issues arise in this case:

(a)

whether the exemptions under section 34 of the Act have been properly claimed and, if not, whether those documents are internal working documents within the meaning of section 36 of the Act, the release of which would be contrary to public interest; and

(b)

whether some of the documents are irrelevant and outside the scope of the applicant's request, and/or whether some of those documents are exempt under section 42 of the Act.

The large majority of the documents in this case are subject to a claim for exemption under section 34 and/or section 36 of the Act.

(a)

a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;

(b)

an official record of the Cabinet;

(c)

a document that is a copy of, or a part of, or contains an extract from, a document referred to in paragraph (a) or (b);

(d)

a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published."

Section 34(1A) provides that purely factual material cannot be exempt under subsections 34(1)(a), (b) or (c) unless its release would disclose an unpublished deliberation or decision of Cabinet.

Subject to the exception specified in section 34(1A), a document that comes within the categories specified in section 34(1) is exempt regardless of whether the disclosure of the information contained in a document would be in the public interest. The Tribunal does not have any discretion to give access to such a document (Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; (2003) 78 ALD 645). The policy reason for this lies in the place that Cabinet has in the executive government of Australia, as described by Blackburn CJ in Whitlam v Australian Consolidated Press (1985) 60 ACTR 7 as (at 15-16):

"... part of the machinery of the government of the country ... Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilization.

...

In my opinion, in this case the public interest in maintaining Cabinet secrecy easily outweighs the contrary public interest in ensuring that the defendant has proper facilities for conducting its case, principally because of the enormous importance of Cabinet secrecy by comparison with the private rights of an individual ..."

In order to fall within the exemption in section 34(1)(a), a document must be "brought into existence for the purpose of submission for consideration by the Cabinet". The document must be either a document that has been submitted to the Cabinet for its consideration or a document that is proposed by a Minister to be so submitted. Deputy President Forgie explained in Toomer that section 34(1)(a):

"...exempts from disclosure a document that has been created for the purpose of being presented to Cabinet for it to deliberate upon, take into account or to reflect upon and that has either been presented to Cabinet for that purpose or is proposed by a Minister to be presented to Cabinet for that purpose. The choice of the word 'consideration' in s. 34(1)(a), rather than the word 'deliberation' chosen in s. 34(1)(d), suggests that the exemption extends to a document that is prepared simply to inform Cabinet and whose contents are intended to be noted by its Ministers ..."

Section 34(1)(b) exempts documents that are an official record of Cabinet, but what is meant by "an official record of Cabinet"? The expression is not defined in the Act. Deputy President Forgie in Toomer considered this question and formed the opinion that, for a document to be an official record of Cabinet it must:

(a)

record, relate, tell or set down certain matters;

(b)

it must do so in a form that is meant to preserve that relating, telling or setting down for an appreciable time (whether this be a paper or computerised record); and

(c)

the certain matters that are related, told or set down must relate to Cabinet and its functions and not to matters extraneous to those functions.

Section 34(1)(c) is clear enough. It provides protection from release for documents that are copies of or parts of or an extract from a kind of document described in subsections 34(1)(a) and (b).

Section 34(1)(d) relates to documents whose release would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published. There are two aspects of this provision that require consideration in this case. One is the meaning of "deliberation or decision" and the other is that of "officially published".

After reviewing the relevant authorities in this area, Deputy President Forgie held, in Toomer, that the words "deliberation" and "decision" should be given their ordinary meanings of deliberating and considering and of determining and resolving respectively. The Deputy President considered, in a decision-making process, it may be that a deliberation precedes a decision, but the Deputy President went on to say that a deliberation is no less a deliberation for not resulting in a decision and a decision is no less a decision for not being supported by written evidence of deliberation. The Deputy President concluded:

"...[Cabinet's] deliberations are its thinking processes be they directed to gathering information, analysing information or discussing strategies. They remain its deliberations whether or not a decision is reached. Its decisions are its conclusions as to the courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed."

The protection of Cabinet documents has been seen as the protection of an essential public interest and so all its deliberations and decisions are protected as provided by section 34(1)(d) (Toomer). This means that information that discloses that Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies is exempt from release. As Deputy President Hall said in Re Anderson and Department of Special Minister of State (No 2) (1986) 11 ALN 239 (at par 27):

"It is not necessary that the decision or deliberation should be quoted verbatim. To construe s. 34(1)(d) otherwise would be to place a premium upon verbal accuracy and to require a precision of expression in government documents that could only frustrate rather than promote the proper and efficient conduct of government. Whether, in a particular case, disclosure of a document would involve the disclosure of a decision or deliberation of Cabinet is a question of fact to be decided in the light of all the circumstances."

This raises the question, must the documents containing the information have been prepared contemporaneously with, or subsequent to, the deliberations or decisions? In this regard, the Full Federal Court, in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2000] FCA 453; (2000) 171 ALR 379 (Black CJ, Tamberlin and Sundberg JJ), considered a claim made in respect of a letter written by a Minister to the then Prime Minister seeking agreement to raise a matter at the next meeting of Cabinet. Counsel had submitted that the letter was prepared outside Cabinet and did not reveal the actual deliberations of Cabinet. The Full Court found that (at p390):

"... This evidence as to the content of the letter and the persons by whom and to whom it was addressed make it apparent that the letter is an important Cabinet document. Although the letter does not in terms record actual deliberations at a Cabinet meeting, it was circulated amongst Ministers in the Cabinet room at the meeting, and the matters in it were discussed and considered by those present. In that sense it reveals what would in the ordinary course be discussed by Cabinet. Some possible contingencies might be imagined whereby the letter was not in fact considered at the meeting, such as a last minute withdrawal or an adjournment, but the evidence is that the matters in it were discussed."

"Disclosure of the contents of the letter would, in our view, operate to reveal the nature of the matters considered by Cabinet and at least part of the Cabinet's deliberation of those matters. On the evidence it can reasonably be assumed, in the circumstances of this case, that the Minister would have attended the meeting and put before Cabinet the position and arguments as set out in the letter. Disclosure of the contents of the letter would therefore disclose the position of the Minister, the arguments he wished to advance, and the topic which in all probability was discussed at the meeting. Otherwise it is not possible to envisage why the letter would have been handed out to the Cabinet members at the Cabinet meeting. The position taken by the Minister in Cabinet is part of the Cabinet's deliberations. Disclosure of the Minister's position in this context would not only be contrary to the convention of the collective responsibility of Cabinet, because it identifies a particular Minister's views, but would also be contrary to the objective of ensuring that decision-making and policy development by Cabinet is uninhibited, because members of Cabinet could be hampered in the performance of their functions to candidly and comprehensively consider Cabinet proposals if subjected to publication of the details of discussions within the Cabinet room..."

Similarly, in National Tertiary Education Industry Union v Commonwealth of Australia [2001] FCA 610; (2001) 111 FCR 583, Weinberg J considered claims of exemption in relation to documents which included a Cabinet submission and a Cabinet brief prepared by the Department of Education, Training and Youth Affairs. There was evidence that the document revealed issues considered by Cabinet, the Minister's position on those issues and suggested arguments that the Minister could be expected to have advanced at the Cabinet meeting (par 26). As such, Weinberg J found that the inspection of the document would reveal the deliberations of Cabinet.

37. Although the above authorities dealt with the issue of Cabinet deliberations and decisions in the context of public interest immunity, they are directly referable to section 34(1)(d) (Toomer). Both exemptions are directed to protecting what is regarded as an essential public interest. The documents in both cases must first be examined to determine whether they do in fact disclose deliberations or decisions of Cabinet. Whether they were prepared before or after the meeting of Cabinet at which they were discussed is not determinative of the issue. The whole of the evidence, of which the documents are only part, must be examined to make that determination (Toomer).

However, it is not every deliberation or decision of Cabinet that is protected from disclosure by section 34(1)(d), for those documents by which a decision is "officially published" are excluded from the protection. In Toomer, Deputy President Forgie found that the exclusion relates to documents which make decisions generally known and which are written or issued as one of the functions of the person or body responsible for publishing it. The Deputy President went on to say:

"...it is conceivable that a decision might be officially published in a document approved by Cabinet or in a document approved by the Minister responsible for the matter. Whether a document officially publishes a decision depends upon the evidence."

The exemptions discussed above, that is the exemptions in subsections 34(1)(a), (b), (c) and (d), are excluded from operation by virtue of section 34(1A) where the document in question contains purely factual material and its disclosure would not reveal any deliberation or decision of the Cabinet where the fact of that deliberation or decision has not been officially published.

40. What is meant by "purely factual material"? In Re Smith and Aboriginal and Torres Strait Islander Commission [2000] AATA 512, Deputy President Forgie considered what was meant by "purely factual material" in the context of section 36(5), and stated (at par 67-68):

"67. ... a reference to 'factual material' may, on its ordinary meaning, be either a reference to that material which is concerned with something which is known to have happened or a reference to that material which is concerned with that which is said to be true or is supposed to have happened. The Full Court of the Federal Court in Harris adopted a meaning more consistent with the latter than the former. It agreed with Beaumont J's decision permitting access to the first report made by Miss Pearlman. In doing so, it implicitly agreed with his conclusion that '...investigative material consisting of the underlying facts perceived by Miss Pearlman at that stage of her inquiry ...' (page 566) was factual material. Neither the Full Court nor Beaumont J undertook any enquiry as to whether Miss Pearlman's perception of the facts was accurate or reasonable or whether those who had an interest in her perception of the facts had been given an opportunity to refute, explain or comment upon them.

68. The word 'purely' has been defined as meaning '... I In non-physical senses. 1 Simply, exclusively, solely. Also (now chiefly US dial) thoroughly, completely. ... :† b Really, genuinely ...' (The New Shorter Oxford English Dictionary, 1993) and '... in a pure manner; without admixture. 2. merely; entirely ... 3. exclusively ...' (The Macquarie Dictionary, 3rd edition, 1997). The placement of this word before 'factual material' means that the factual material must be just that. It must not be mixed with, for example, conclusions on questions of law."

In Toomer, Deputy President Forgie found that, subject to the qualification that the document must not disclose any deliberation or decision of Cabinet where the fact of that deliberation or decision has not been officially published, the principles discussed in Smith are applicable to the interpretation and application of section 34(1A).

The Tribunal notes that Cabinet notebooks are exempt from production under the Act, pursuant to definition of "document" is section 4. Document is defined as:

"(a) any of, or any part of any of, the following things:

(i) any paper or other material on which there is writing;

(ii) a map, plan, drawing or photograph;

(iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

(v) any article on which information has been stored or recorded, either mechanically or electronically;

(vi) any other record of information; or

(b) any copy, reproduction or duplicate of such a thing; or

(c) any part of such a copy, reproduction or duplicate;

but does not include:

(d) library material maintained for reference purposes; or

(e) Cabinet notebooks."

Section 4 goes on to define "Cabinet notebooks" as meaning:

"...a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet."

The respondent also claims exemptions under section 36(1), which provides:

"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, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b)

would be contrary to the public interest;..."

The Tribunal has interpreted the expression "deliberative processes" as the decision-maker's "thinking processes": see Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at 606; see also Re Zacek and Australian Postal Corporation [2002] AATA 473 at par 55-61. Deliberative processes extend beyond the business of making policy to the design and operation of administrative systems (Waterford), but it does not extend to every document that is prepared by the Minister or agency in the course of discharging its functions: see Re Hart and Commissioner of Taxation [2002] AATA 1190 at par 25. Documents that are merely descriptive or which deal with procedural issues might fall short of forming part of the deliberative process: see Waterford at 606, and section 36(5) which provides that the section does not protect documents containing purely factual material.

The Full Federal Court, in Harris v Australian Broadcasting Corporation [1984] FCA 8; (1984) 51 ALR 581, found that, when considering whether a document was prepared for or in the course of a department's deliberative process, it not simply a matter of examining the form of words used in the document - the Tribunal must look to the essence of the statements to determine their character for the purposes of the section.

Opinions, advice and recommendations are protected because they agitate the thinking of the Minister or agency concerned. They are "a part of the agency give-and-take - of the deliberative process - by which the decision itself is made...": Vaugh v Rosen (1975) 523 F(2d) 1136 at 1144, cited in Harris at 585. And see Hart at par 28.

Exemptions are claimed under sections 34 and 36 for a large number of documents. I will address these documents by considering the claims under each subsection in turn.

In relation to subsection 36(1)(a), an exemption is claimed by the respondent in relation to part of document 150 only. Document 150 is described in the schedule of documents as a Cabinet submission. Those parts of it that can properly be described as "purely factual material" (see section 34(1A)) have been released to the applicant (see Exhibit 4 at par 4). Without reviewing the document itself, it appears, prima facie, that the document is exempt under section 36(1)(a) of the Act, in that it is a document that was submitted to Cabinet for its consideration, it having been brought into existence for that purpose (see Exhibit 1 at par 21; and Toomer).

The respondent claims that documents 151 to 153 are exempt under section 34(1)(b) and/or section 36 of the Act. These documents are described as Cabinet minutes. Applying the reasoning in Toomer, it is clear that these documents are "an official record of Cabinet" within the meaning of section 34(1)(b). They are a record of matters discussed in Cabinet meetings and were intended as a form of preserving that record, and they are clearly related to Cabinet and its functions. Accordingly, the Tribunal is satisfied that the exemption under section 34(1)(b) in relation to these documents is properly claimed. Ms Croke (in Exhibit 1) indicates that any purely factual material contained in the documents is so inextricably intertwined with deliberative material that its disclosure would reveal deliberations of Cabinet. I have not examined the documents, but I have no reason to doubt the accuracy of this comment.

Given the above finding, there is no need to consider the claim under section 36 of the Act in relation to these documents.

An exemption is claimed under section 34(1)(c) in relation to documents 23, 24, 59 and 72. Exemptions are also claimed for some of these documents under section 34(1)(d) and section 36.

Documents 23 and 24 are described as copies of the final supplementary papers to be considered by Cabinet, annexing a covering email (in the case of document 23) or a covering minute (document 24). The covering email has been released to the applicant. The parts of the documents that could be described as "purely factual" have also been released to the applicant (see Exhibit 4 at par 4). On the basis of the descriptions given of the documents, it would appear that they contain copies of documents which were prepared for submission to Cabinet and are exempt under section 34(1)(c).

Where the documents contain other material which is the subject of an exemption claim under sections 34(1)(d) or 36, it would appear, prima facie, that that material would be exempt under section 36(1) on the basis that it has been prepared to agitate the thinking of the Minister and/or members of Cabinet on policy issues. Similarly, it is also likely they would be exempt under section 34(1)(d) on the basis they contain details of the Minister or Department's position on issues to be raised at a Cabinet meeting, and may therefore reveal the nature of the matters considered by Cabinet or at least part of the deliberations of Cabinet on the issues (see CFMEU's case). Clearly it is not in the public interest that policy that has not been approved, or information that may reveal Cabinet's deliberations, be released, and therefore, it would appear, the exemptions under section 36 have been properly claimed.

Documents 59 and 72 are described as additional information requested by Cabinet. Parts of the documents which are said to contain purely factual material have been released to the applicant (see Exhibit 4 at par 4).

Document 59 has two attachments - a letter from the Minister to the Prime Minister and a departmental minute to other agencies enclosing a copy of the additional information and letter. It seems the departmental minute was part of the consultation process referred to in the extract from the Cabinet Handbook above. Similarly, the 'additional information' has been provided at the request of Cabinet, and the letter from the Minister to the Prime Minister is directly related to the business of Cabinet. These are all documents that would reveal the deliberations of Cabinet and therefore are exempt documents pursuant to section 34(1)(d) of the Act.

It is suggested by the respondent that these documents also contain copies of material submitted or proposed to be submitted to Cabinet, and I accept this is the case. As such, those parts of the documents would also be exempt under section 34(1)(c).

Document 72 also has two attachments - a letter from the Minister to the Prime Minister and a minute to the Minister. Ms Croke states (Exhibit 1) that the letter was brought into existence for the purpose of being submitted to Cabinet and that it was in fact submitted. For the same reasons given for document 59, I am satisfied that the exemption in subsections 34(1)(c) and (d) have been properly claimed in relation to document 72 and the letter to the Prime Minister.

The minute, Ms Croke advises, contains extracts of a Cabinet Minute from 3 March 2003, but she contends this did not amount to an official publication of a decision of Cabinet (Exhibit 1). It would appear, in the context in which the minute was prepared, that the Department was not responsible, at that time, for the official publication of the information contained therein, and that the minute was prepared for the Minister's reference in relation to upcoming meetings of Cabinet. As the document was brought into existence for submission of material to Cabinet, and its disclosure would reveal the deliberations or decisions of Cabinet, and given the minute is not an official publication by Cabinet, I am satisfied that the exemptions in subsections 34(1)(c) and (d) have been properly claimed in relation to this minute.

Further, I am satisfied the exemption under section 36 would also apply to documents 59 and 72, as they are documents designed to agitate the thinking of the Minister and Cabinet. Again, it would not be in the public interest to release policy documents that have not been approved.

The respondent claims an exemption under section 34(1)(d) in relation to part of document 93. This document contains a summary of indexation arrangements across various health programs. Most of it has been released to the applicant, however the respondent claims the exemption over the remainder of the document on the basis that the release of the information would involve the disclosure of unpublished Cabinet deliberations. Although an inference can be drawn, there is no information before the Tribunal as to whether this document was submitted to Cabinet or the context in which the document was prepared. However, on the face of the material provided to the Tribunal, there does not appear to be any basis for overturning the respondent's decision on this point.

The respondent also claims exemptions under subsection 34(1)(d) in relation to a number of other documents or parts thereof. Exemptions under section 36 are also claimed for these documents. The documents in question can be grouped as follows:



Draft Cabinet submissions - documents 1, 2, 7, 8, 9, 10, 11, 17, 18, 19, 20, 25, 26, 45, 49, 98 and 99;



Draft letters from the Minister to the Prime Minister - documents 65, 105;



Briefs and drafts of briefs to Minister - documents 27, 33, 73, 74, 75, 76, 77, 78, 79, 82, 84 and 127;



Minute to the Secretary, Department of Health and Ageing on Cabinet submission - document 124; and



Comments on draft Cabinet submissions and consultation - documents 3, 44, 46 and 57.

62.

Draft Cabinet submissions - Mr Learmonth describes these documents as drafts of Cabinet submissions relating to the Medicare system, draft supplementary papers to be put to Cabinet and departmental memoranda. Mr Learmonth recognises that there may be a public interest in the disclosure of information which would allow the public to make up their minds as to whether or not a policy or decision of Government has been properly reached and that appropriate matters have been taken into account, however he contends that the release of the information may cause disquiet amongst interest groups and inhibit the direct and confidential communications between Ministers and their departments on issues and proposals for Cabinet in the future.

He further states (in Exhibit 3) that release of this material would disclose or tend to disclose the nature of subsequent deliberations of Cabinet, in that the draft documents largely reflect material that was considered by Cabinet, and, where information in the drafts did not end up in the final version of Cabinet submissions, he contends the release of the material may lead to debate on potentially misleading and confusing information.

In relation to whether the documents contain "purely factual material" (see subsections 34(1A) and 36(5) of the Act), Mr Learmonth states that such parts of documents 1, 2, 3, 7, 8, 10, 11, 17, 18, 19, 25 and 26 have been released to the applicant (see Exhibit 4). In relation to the remaining documents, Mr Learmonth states (in Exhibit 3) that a fair reading of the documents would lead one to conclude that there is no purely factual material contained therein, or, in the event that there is, that material is so inextricably intertwined with information relating to unpublished deliberative processes of Cabinet or the deliberative processes of the Minister or department such that it cannot be released.

Documents 1, 2, 7, 8, 9, 10, 11, 17, 18, 19, 20, 45 and 49 are described in the schedule of documents as draft Cabinet submissions (or extracts thereof). Documents 1, 2, 7, 8, 10, 11 have covering minutes seeking comments on the draft submissions. Document 17 annexes a summary of amendments made to the draft submission. Documents 25, 26, 98 and 99 are described as draft supplementary papers for consideration by Cabinet. Document 25 has a covering email. Exemptions are claimed for parts of these documents under sections 34(1)(d) and/or section 36.

Clearly these are documents which have been prepared with an ultimate view of submission to Cabinet. They have been brought into existence for consultation purposes and with the view of drafting a final submission or final 'additional material' to be submitted to Cabinet. These documents, it appears, were not actually provided to Cabinet. Having said this, it may be that some parts of the documents, were included in the final submission or final additional material provided to Cabinet, in which case those parts would be exempt from production pursuant to subsection 34(1)(c) of the Act. This would seem the more appropriate exemption than subsection 34(1)(d), as the particular documents were not provided to Cabinet and therefore were not deliberated on by Cabinet.

In so far as the documents contain information that was not included in the final submission to Cabinet, it is a bit of stretch to say that the documents contain information that would disclose a deliberation of Cabinet. If the material was not in the final submission, it could not have been deliberated on by Cabinet. What the documents may reveal is the advice, opinions, recommendations and deliberations of the Minister, the Department and other government officials. Section 36(1) protects this material from release where it is not in the public interest that the documents or parts thereof be released. These draft submissions were prepared to agitate the thinking of the Minister and departmental officers. They are "part of the agency give-and-take - of the deliberative process - by which the decision itself is made" (see Vaugh's case and Harris' case). Therefore, I am satisfied that section 36(1)(a) applies to this material in the documents.

I am further satisfied that it would be contrary to the public interest for this material to be released. I agree with the respondent that the draft documents were prepared in confidence, the contributors feeling free to raise issues of policy development in a frank manner. The documents may contain material that was not contained in the final policy and its release may mislead the public and inhibit the high level policy development operations of the Department.

It is a different situation with regards to documents 25, 26, 98 and 99. Their release may disclose the deliberations of Cabinet, as Cabinet has requested it be provided with the additional information. Where this is the case, an exemption under section 34(1)(d) is properly claimed. The draft documents are not official publications and therefore section 34(1)(d) applies to exempt these documents.

Without reviewing the documents, I cannot form an opinion as to whether they contain purely factual material. However, I have no basis for doubting the respondent's case that any such material has been released where possible (see Exhibit 4 at par 4) and that any remaining material is inextricably intertwined with the exempt material and that its release would disclose the deliberative processes of the Department or Minister.

71.

Draft letters from Minister to Prime Minister - Document 65 is a minute from a departmental officer to the Minister annexing a draft letter from the Minister to the Prime Minister relating to a Cabinet submission. Document 105 is described as a draft letter from the Minister to the Prime Minister on "package", together with a covering email from a departmental officer to the Minister's senior adviser.

If these letters were in their final form, there would be no doubt that they would fall within the exemption in section 34(1)(d) (see CFMEU's case). However, in their draft form, similar problems arise in relation to these documents as discussed in relation to the draft Cabinet submissions above.

In so far as the letters contain information that was contained in the final letter sent to the Prime Minister, the exemption would apply. However, where the draft letters contain material that was not included in the final letter, it cannot be said that this information would reveal the deliberations of Cabinet, given that the material was never before Cabinet. In these circumstances, for the same reasons as given above in relation to the Cabinet submissions documents, I am satisfied that the appropriate exemption in relation to any such parts of documents 65 and 105 is section 36(1). Further, I am satisfied, for the same reasons given in relation to the Cabinet submissions above, that the release of this material would be contrary to the public interest.

74.

Briefs and draft briefs to Minister - Documents 27, 33, 73, 74, 75, 76 and 77 are draft briefing notes for Cabinet. Documents 33, 73, 75, 76, 77 have covering minutes seeking the Minister's comments on the draft briefing for Cabinet.

Documents 78, 79 and 84 are described as "Briefing for Minister in Cabinet" in the schedule of documents, with documents 79 and 84 having covering emails. Document 82 is a briefing for the Minister for a meeting with the Prime Minister about the Medicare package, whilst document 127 is described as speaking notes for the Minister in Cabinet.

Exemptions are claimed for these documents under section 34(1)(d) and 36 of the Act.

I am satisfied, from their descriptions, that documents 78, 79, 82, 84 and 127 are exempt from release pursuant to section 34(1)(d). These documents appear to be the final versions of documents prepared for the Minister to use at Cabinet meetings or in discussions with the Prime Minister prior to a Cabinet meeting. The documents may reveal the issues considered by Cabinet, the Minister's position on these issues and suggested arguments that the Minister could advance at the Cabinet meeting (see National Tertiary Education Industry Union's case at par 26 and CFMEU's case). They would, therefore, reveal the deliberations of Cabinet and are exempt from production.

In relation to the draft briefings, similar issues arise in relation to these documents as arose in the previously discussed categories of subsection 34(1)(d) documents. Where the draft briefings contain material that was included in the final briefing used by the Minister at the Cabinet meeting, the exemption would apply to that material. However, where the documents contain material that was not included in the final briefing, the appropriate exemption is section 36(1).

I am satisfied that it would be contrary to the public interest for the material to which section 36(1) applies to be released. As indicated in Mr Learmonth's affidavit, this material may contain alternative policies and its release may cause disquiet or may mislead the public.

Mr Learmonth states that there is no "purely factual material" in these documents. I have not had access to the documents, but I see no basis for challenging Mr Learmonth's statement in this regard.

81.

Minute to the Secretary - An exemption is claimed over part of document 124 under subsection 34(1)(d) and/or section 36. Mr Learmonth's affidavit is confusing as to the nature of this document. In the heading (Exhibit 3, page 8), he refers to briefs to the Secretary, Department of Health and Ageing "on matters considered by Cabinet", yet (in par 22) he refers to briefs prepared "in the lead up to Cabinet discussions, ... or regarding matters considered by Cabinet". The document is described in the schedule to Mr Learmonth's later affidavit (Exhibit 4) as "Minute to Department's executive re Cabinet submission minute".

I have not reviewed document 124, and, whilst I am satisfied that parts of it would be exempt from production, I note that its actual nature will be determinative of the correct exemption that should apply to it. If the document contains details arising out of a Cabinet meeting, then section 34(1)(d) will apply, as it would no doubt reveal deliberations or decisions of Cabinet. If it is a document prepared prior to a Cabinet meeting, than section 36(1) would apply to any material that would disclose the deliberative processes of the Department or government. I am satisfied that it would not be in the public interest to release such material.

83.

Comments on Cabinet submissions and consultations - Exemptions are claimed under section 34(1)(d) and 36 in relation to documents 3, 44, 46 and 57. Mr Learmonth states that these documents were generated for the purpose of providing input to the development of the Cabinet submission and co-ordination and consultation with the Department and others. He claims they form part of the consultation processes required by the Cabinet Handbook (as quoted above) and are, therefore, an integral part of Cabinet's deliberative processes.

Document 3 is described as a draft Cabinet submission with comments from Cabinet Office. Documents 44 and 46 are letters from the Department to the Department of Finance and Administration responding to questions about costings in the draft Cabinet submission. Document 57 is described as additional information for the Cabinet submission provided by a departmental officer to the Assistant Secretary, Medicare Benefits Branch.

In this case, based on the above descriptions, it appears the Department is either seeking comments for inclusion, or otherwise, in its Cabinet submission or answering queries about its draft submission. It is unclear what the nature of the comments by the Cabinet Office were. It may have simply been providing formatting advice. Without viewing document 3, and in the absence of a proper description of the document, I cannot be certain as to whether any exemption can be properly claimed in relation to this document in this regard under section 34(1)(d). However, that part of document 3 that contains the draft Cabinet submission prepared by the Department would certainly be exempt under section 36(1) in so far as it reveals the deliberative processes of the Department or Minister.

In relation to the remaining documents, where the documents contain information that was included in the final submission prepared for Cabinet, that material should be exempt under section 34(1)(d) as it is clear that it would disclose information considered by Cabinet and therefore it may disclose unpublished deliberations of Cabinet. Where the material was not included in the final submission, I am satisfied that the material would be exempt under section 36(1) of the Act, as it would disclose the deliberative processes of the Department, Minister and other government agencies. The public interest in not disclosing this material outweighs any consideration mitigating in favour of its release.

Finally, the respondent has claimed exemptions under section 36(1) of the Act in relation to a large number of documents. These have been broadly classified, in the affidavit of Mr Learmonth, as:



Draft, indicative or final costings for Cabinet submission - documents 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 55, 56 and 61;



Letters or drafts of letters from the Minister to the Prime Minister - documents 67, 68, 69 and 81;



Briefs and drafts of briefs to Minister or Secretary, Department of Health and Ageing - documents 32, 83, 86 and 100;



Comments on draft Cabinet submissions and consultations - documents 6, 12, 14, 15, 16, 21, 30, 31, 48, 50, 51, 52, 53, 55, 56, 115, 116, 119, 121, 125, 128, 129, 131, 134; and



Policy development - documents 58, 60, 62, 64, 66, 71, 85, 87, 88, 89, 90, 92, 97, 101, 102, 103, 104, 106, 107, 108, 109, 110, 111, 112, 113, 114, 120, 122, 133, 135 and 136.

Again, I will address each of these categories in turn.

88.

Draft, indicative or final costings for Cabinet submission - Exemptions are claimed under section 36 of the Act on the basis that documents 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 55, 56 and 61 are draft, indicative or final costings for the Cabinet submission relating to the Medicare system. Mr Learmonth states (in Exhibit 3) that confidential communication between departments and government agencies in the development of costing information is essential to the effective operation of government policy development and Cabinet processes. He further states that the publication of preliminary or draft costing information is not in the public interest as it could be incomplete, inaccurate or misleading. I agree.

I am satisfied, on the material before me, that the documents are internal working documents within the terms of section 36(1) of the Act. They contain information that would disclose matter in the nature of opinion, advice or recommendations prepared, or consultation that has taken place, in the course of the deliberative processes of the Department, the Minister and other government officials. It is contrary to the public interest to disclose the exempt material.

I have no basis to doubt Mr Learmonth's assertion that there is no "purely factual material" contained in these documents, or that if there is it is so inextricably intertwined with the exempt material such that it cannot be released.

91.

Letters or draft letters from the Minister to the Prime Minister - Documents 67 and 68 are duplicates. They, and document 69, consist of a minute to the Minister on the Cabinet submission annexing a draft letter from the Minister to the Prime Minister. Document 81 is a briefing for the Secretary which includes a draft letter from the Minister to the Prime Minister.

Even without viewing these documents, it is clear from their descriptions that they are internal working documents under section 36 of the Act. Their release would disclose deliberative processes of the Department and the Minister, and their confidential nature is such that it would be contrary to the public interest to release the material contained therein.

93.

Briefs and drafts of briefs to Minister or Secretary - Documents 83 and 86 are described as briefings for the Minister (and, in the case of document 86, the Prime Minister) in relation to the measures in the Medicare package. Document 100 is part of an advice to the Secretary on the measures in the package. From their descriptions, it is clear they are internal working documents and that the exemption under section 36(1) of the Act has been properly claimed.

Document 32, however, is described in the schedule of documents as an extract from the Minister's briefing for Cabinet. I have not reviewed this document, but, on the basis of this description, it would appear that an exemption may be available in relation to this document pursuant to section 34(1)(d) of the Act, although such an exemption has not been claimed. In any event, the document would appear to be exempt under section 36(1) as it would reveal the deliberative processes of the Minister and the Department, and it would be contrary to public interest for it to be released.

95.

Comments on draft Cabinet submissions and consultations - As outlined earlier in these reasons (see par 12), the Cabinet Handbook requires Ministers to consult in relation to Cabinet submissions and to give related departments and agencies the opportunity to make "co-ordination comments" in relation to any Cabinet submission that may impact on them.

A review of documents 6, 12, 14, 15, 16, 21, 30, 31, 48, 50, 51, 52, 53, 115, 116, 119, 121, 125, 128, 129, 131 and 134 reveal that these documents are part of a consultation process that took part within the Department and between the Department and other agencies, including the Health Insurance Commission and the Department of Finance and Administration, in the process of preparing the Cabinet submission. I am satisfied that the release of these documents would involve the disclosure of opinions, advice and recommendations relating to the deliberative processes of the Commonwealth government, and that the release of the documents would be contrary to the public interest. I am satisfied they are exempt under section 36(1) of the Act.

97.

Policy development - The respondent contends the documents in this category were prepared internally by the Department in relation to policy options for reform of the Medicare system. They contain opinion, advice and recommendations for use in the deliberative processes of government. Mr Learmonth, in his affidavit (Exhibit 3), explains that some of these policy options were announced as part of the A Fairer Medicare package, but he contends the deliberative processes continued after the announcement as some of the options remained, and still remain, under consideration for future policy development.

Mr Learmonth states that it would be contrary to the public interest if the material in these documents were released. He contends their disclosure would have a detrimental effect on the efficient and economical performance of the Department and inhibit the frank and open communications at a high level in relation to policy development. He further contends that the opinions, advice and recommendations contained in the documents are of continuing relevance in policy deliberations and discussions with stakeholders and their release may inhibit the government's ability to review existing policy and advance the development of further policy; and that the release of the information may cause unnecessary debate and cause confusion as to what the government's intentions are with respect to Medicare reform.

Documents 58, 60, 87, 88, 89, 90, 92, 101, 102, 103, 104, 106, 108, 109, 110, 111, 112, 113, 114, 122, 133 and 136 can be described as policy 'option generation' and discussions, as can documents 62, 64, 107, 120 and 135 which have a particular emphasis on costing issues. These documents are clearly part of the Department's, and the government's, deliberative processes. The documents involve the expression of opinions, recommendations and advice, which the Department and the Minister would and could still have had regard to in the formulation of policy. I am satisfied these documents are exempt pursuant to section 36(1) of the Act. The reasons given by Mr Learmonth on the public interest issues are compelling - I agree that it would not be in the public interest for these documents to be released.

Documents 85 and 97 are draft information sheets and rules relating to particular elements in the package. These are clearly internal working documents, within the meaning of subsection 36(1), and it would not be in the public interest for these documents to be released, particularly as they may contain errors or inaccuracies that may mislead the public.

Documents 66 and 71 are minutes seeking "co-ordination comments" in relation to Cabinet submissions. I would have thought these were more appropriately classified in Mr Learmonth's category of comments and consultation documents although I recognise the special meaning of "co-ordination comments". In any event, I am satisfied, on the material before me, that the documents are exempt under section 36(1) of the Act. Their release would involve the disclosure of material relating to the deliberative processes of the Commonwealth government. It would not be in the public interest for this material to be released.

The respondent claims that some of the documents are irrelevant to the applicant's request as they fall outside the scope of his FOI request. They further claim that some of these documents are subject to an exemption under section 42 of the Act.

The respondent claims that the following documents are irrelevant: documents 4, 5, 13, 22, 28, 29, 63, 80, 118, 132, 137, 142, 144, 145, and a document which is not numbered but which appears in the schedule annexed to Mr Learmonth's affidavit between documents 131 and 132, described as "Emails and paper from Nov 2002 re workforce measures".

The respondent further claims that the following documents are either irrelevant to applicant's request of are exempt under section 42 of the Act: documents 138, 139, 140, 141, 143, 146, 147, 148 and 149.

Section 42(1) provides an exemption where a document would be privileged from production in legal proceedings on the ground of legal professional privilege.

The rule as to the existence of legal professional privilege was concisely explained by the High Court in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49. The majority said (at paragraphs 9 and 10):

_"It is now settled that legal professional privilege is a rule of substantive law [_Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 490 per Deane J] which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. ...

Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection. ... Rather, and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures..."

In order to succeed in a claim for legal professional privilege it must be shown that there was, at the relevant time, a relationship of client and legal adviser, and that the document in question was made for the dominant purpose of giving or obtaining legal advice (see also, Re Wallace and Director of Public Prosecutions [2003] AATA 119 at pars 77-78).

The respondent claims that some of the documents in this case fall outside the scope of the applicant's FOI request and therefore are irrelevant and should not be released. The applicant contends that the Tribunal should also consider whether those documents should be released pursuant to section 22 of the Act.

Pursuant to section 22, the respondent is not required to disclose material that is irrelevant. Section 22(1) relevantly provides:

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency of Minister to make a copy of the document with such deletions that the copy: ...

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy."

Under section 22 it is necessary to consider whether the document contains information that "would reasonably be regarded as irrelevant to that request". The Tribunal discussed the meaning of that expression in Re Russell Island Development Association Inc and Department of Primary Industries and Energy [1994] AATA 2; (1994) 33 ALD 683. After referring to the decision in Re Attorney-General's Department and Cockcroft (1986) 12 ALD 468, Deputy President Forgie said (at 691) the expression "would reasonably be regarded" requires the decision-maker to:

"...consider whether disclosure of certain information might reasonably, as opposed to irrationally or absurdly, be considered or looked on as irrelevant to the request for access made under the Act."

Claims under section 42 are made in relation to documents 138, 139, 140, 141, 143, 146, 147, 148 and 149. On the basis of their description in the schedule, these documents appear, prima facie, to be internal correspondence between staff of the Department of Health and Ageing and staff within the Department's legal section. As recognised in Re Citibank Limited [1989] 1 Qd R 516, legal professional privilege can attach to advice given by in-house legal officers. The documents in question in this case appear to be documents which have been prepared for the dominant purpose of giving or obtaining legal advice.

Accordingly, on the basis of the material before me, I am satisfied that the exemptions in relation to the documents 138, 139, 140, 141, 143, 146, 147, 148 and 149 have been properly claimed. Given this finding, it is unnecessary to consider whether the documents are also irrelevant to the applicant's FOI request.

The respondent claims that the following documents are irrelevant: documents 4, 5, 13, 22, 28, 29, 63, 80, 118, 132, 137, 142, 144, 145, and a document which is not numbered but which appears in the schedule annexed to Mr Learmonth's affidavit between documents 131 and 132, described as "Emails and paper from Nov 2002 re workforce measures".

In his affidavit (Exhibit 3), Mr Learmonth states that documents 4, 5, 13, 22, 28, 29, 80 and 132 relate to internal or administrative processes within the Department rather than policy issues relating to the reform of the Medicare system, and, therefore, it is contended, they are irrelevant to the applicant's request.

Documents 142, 144 and 145 are described as procedural documents in relation to the approval process for disclosure of statistical information, and not policy documents relating to the reform of Medicare and therefore they fall outside the scope of the applicant's request.

Document 63 is a media release by the Shadow Minister and document 137 consists of emails about the media release. Document 118 contains information about the Rural Retention Program. The respondent contends that these three documents fall outside the scope of the applicant's request for access and therefore are irrelevant.

In order to properly consider this issue, it is necessary to review the request for access in order to determine its scope. In his letter dated 23 June 2003, the applicant states (T3, folio 26):

"Specifically, I am seeking access to documents relating to the reform of [sic] Medicare system, including bulk billing, however I am only interested in documents created within, or produced for, the department since my last FOI request to the department on the same subject with only documents created or produced from February 1 this year falling within the scope of this application.

I am interested in documents including those outlining or summarising viewpoints and assessments of issues like: (a) possible reform options considered on Medicare, including costs to government expenditure, (b) the impact on, and likely response by consumers and service providers to the proposed reforms, (c) the likelihood of success or failure of incentives to encourage doctors to bulkbill and (d) improving claim procedures. I am also interested in any assessment or forecast (e) on whether specific types of health services or any consumers will face a higher financial burden from the proposed reforms and (f) forecasts on the impact of the government's reform on whether doctor's fees will rise or fall and the extent of any changes. It is possible documents prepared for senior management canvassing these issues may fulfil the scope of my request and I am happy to discuss this possibility.

I am also interested in (g) correspondence with the Australian Medical Association on the issue of reform to Medicare and suggest any documents summarising the AMA's final position on the issue of Medicare reform may fulfil the scope of this part of my request."

The applicant amended his request by letter dated 2 July 2003 as follows (T5, folio 28):

"...I would like to amend that request so that in additional [sic] to seeking documents in relation to bulk billing as previously outlined the terms 'at no cost to the patient' or 'without paying a gap' are also used. I understand that this is the terminology the department may have recently adopted."

On 18 July 2003, the respondent wrote to the applicant seeking clarification of the scope of his request, stating (T6, folio 29):

"As you may appreciate the 'Medicare system' is a very broad topic, encompassing a variety of services. As the only major 'reforms' to the 'Medicare system' since 1 February have been those encompassed in the A Fairer Medicare package we have interpreted your request as being in relation to the types of documents you have identified that are relevant to the A Fairer Medicare Package. If this is not correct, could you please clarify the scope of your request."

The applicant confirmed by telephone that he was happy with this interpretation of his request (T7, folio 30).

On the basis of the above, the respondent contends the applicant should not be granted access to the above documents as those documents do not relate to the A Fairer Medicare package. I am satisfied that documents 63, 118, 137, 142, 144 and 145 do not relate to the A Fairer Medicare package and therefore they are irrelevant to the applicant's request and should not be released to him. From their descriptions, it is clear the documents do not in any way relate to the package, and therefore I am satisfied that section 22 of the Act has no application to them.

Documents 4, 5, 13, 22 and 28 relate to the process of preparing a Cabinet submission. They appear to deal only with procedural issues and are not directly relevant to the A Fairer Medicare package or the development of that policy. Again, it seems that section 22 would have little application to these documents as they appear wholly unrelated to the applicant's request and therefore are should not be released.

Document 29 is a request to prepare material for a media release, document 80 is a request to prepare a Cabinet briefing for the Minister (apparently dealing with administrative and process issues), and document 132 is an internal email regarding the preparations for announcing the Medicare package. With the exception of document 132, these appear to be irrelevant documents, in that they deal only with internal processes and procedures rather than policy development. Even document 132 appears to be irrelevant in some respects in that it only appears to relate to the process of announcing the new policy rather than its contents or its development. I have not viewed document 132, but on the basis of its description, it appears to be a document to which section 22 would not apply, as its entire contents appear to be irrelevant.

In relation to the document described as "Emails and paper from Nov 2002 re workforce measures", I am satisfied that this document falls outside the scope of the applicant's request. Not only is its content irrelevant (as it does not appear to relate to the A Fairer Medicare package), but it was created prior to 1 February 2003. The applicant clearly expresses in his request for access that he is only seeking access to documents created after 1 February 2003.

The Tribunal varies the decision under review (as amended by the letters of the respondent dated 6 August 2004) in that, in relation to documents 1, 2, 7, 8, 9, 10, 11, 17, 18, 19, 20, 45 and 49, the Tribunal finds that these documents are exempt pursuant to subsections 34(1)(c) and 36(1) of the Freedom of Information Act 1982, and that the exemption under subsection 34(1)(d) has not been properly claimed in relation to those documents.

I certify that the 125 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe

Signed: Sarah Oliver

Associate

Date of Hearing 23 September 2004

Date of Decision 29 October 2004

The Applicant appeared in person

Counsel for the Respondent Mr Logan SC and Ms Mellifont

Solicitor for the Respondent Australian Government Solicitor