In relation to the efficacy of wind energy to reduce Victoria's greenhouse gas emissions at the levels claimed by the government, work continues to be published which shows that wind energy can play no more than a token role, and in doing so is one of the most expensive ways to reduce emissions when compared to other options (such as low emission fossil fuels).

1. Mr Krbaleski is a public servant and director, Office of Energy & Earth Resources Strategic Policy in the Department of Primary Industry. In 2005 and 2006, Mr Krbaleski was responsible for managing the development and implementation of sustainable energy policy including the VRET scheme.
2. It is apparent that a Business Impact Statement (BIA) is required when proposed legislation has a potential significant impact on business and/or competition. The VRET scheme was designed to increase the share of renewable energy in relation to Victoria's energy needs. As a result of the policy, the Victorian Government to increase the use of renewable energy and decrease the use of fossil fuels, on 16 November 2005, the Minister for Energy and Industries instructed the Department of Infrastructure to have a BIA prepared in relation to the VRET scheme.
3. At paragraph 5 of Mr Krabelski's third witness statement, he states :

Document 6 is the final version of the VRET BIA. That document contains opinions in relation to the policy issues concerning the VRET scheme. Those opinions were expressed by KPMG, on behalf of the Department of Infrastructure, for the sole purpose of informing and assisting Cabinet in its deliberations about whether to introduce a Bill into Parliament concerning the VRET scheme, and (if that were to be done) about what the Bill should contain.

1. Then, at paragraphs 7 and 8 of his third witness statement, Mr Krabelski states :

... a BIA is treated as a Cabinet-in-confidence document. There are strong reasons around such documents being kept confidential. The sanctity of Cabinet confidentiality is fundamental to a well-functioning government. Disclosing a BIA without the consent of the executive would violate that confidentiality. That, in turn, would compromise the integrity of the Cabinet process, which would be contrary to the public interest.

... I prepared the Cabinet Submission, that Document 6 (with some very minor modifications - which I now note were made at around the time I prepared the Cabinet Submission) was Attachment 3 to the Cabinet Submission, and that I summarised the document in the body of the Cabinet Submission. That summary was in the nature of an executive summary.

1. Mr Krabelski's other witness statements make it clear that the BIA was prepared for the sole purpose of being submitted to the Cabinet for it to consider. It was not prepared for any other purpose. In particular, it was not prepared so that different documents could then be prepared for submissions to Cabinet for it to consider.
2. Barbara Ann Poland, Director of Cabinet Secretariat and Department of Premier and Cabinet, made a witness statement which demonstrates how Document 6 was put before the Cabinet. In paragraph 4 she states :

In late March 2006, the Cabinet Secretariat received an 'approved in Principle' submission for Cabinet in relation to the Victorian Renewable Energy Target Bill ('the Cabinet submission'). The Cabinet submission was distributed to ministers on 29 March for consideration by Cabinet on 3 April 2006, and is held by the Cabinet Secretariat.

1. Ms Poland also gave evidence that, apart from minor cosmetic matters which she listed, Document 6 is identical to Attachment 3 of the Cabinet submissions. Further, she states that at "the bottom of each page of Attachment 3 of the Cabinet submission is marked as 'CABINET-IN-CONFIDENCE' whereas Document 6 has no such marking.
2. The respondent claims the exemptions pursuant to s 28(1)(c) with s 28(1)(b) and s30(1) of the FOI Act.
3. Section 28 of the FOI Act relevantly reads as follows :

(b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet;

(c) a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (ba); or

(3) Subsection (1) does not apply to a document referred to in a paragraph of that subsection to the extent that the document contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of the Cabinet.

1. Mr Whelen, in paragraph 57 of his submissions, summarises the dispute between the applicant and the respondent in relation to Document 6. Insofar as s 28 exemptions are claimed, he states :

The matters in dispute in relation to this claim are :

1. whether the respondent has satisfied the Tribunal that Document 6 was prepared for the purpose of 'for consideration by' the Cabinet;
2. whether s 28(3) applies - that is whether the respondent has satisfied the Tribunal that to no extent does document 6 contain 'purely statistical technical or scientific material'."

1. It is clear that for the s 28 exemption to apply, the document in question must be prepared for consideration by the Cabinet.
2. Also, it is clear that if an executive summary of a document is provided to Cabinet for consideration, the entire document is to be taken as having been submitted to Cabinet for its consideration.
3. In Olexander v Department of Premier and Cabinet [VCAT 23 May 2002] at [28] Judge Strong VP stated :

Whether the report is actually brought into the meeting room is immaterial. The executive summary explains to the members of the board or committee in a shorthand way what they would themselves read if they examined the report. The fact that such a summary is prepared does not make the report itself any the less a document for consideration by the board or committee for whom the summary is prepared.

1. Mr Whelen relied on three cases to support his submission that Document 6 was not prepared for Cabinet consideration.
2. The first case that Mr Whelen referred to was Ryan v Department of Infrastructure [2004] VCAT 2346; [2004] 22 VAR 226. That proceeding dealt with documents that included hundreds of certificates of title. All certificates of title were prepared with the intention that they would be submitted to Cabinet. However, the Tribunal held that the certificates of title were not exempt because the Tribunal was not satisfied that the substantial intention that the documents were prepared for Cabinet's consideration of their contents. At paragraphs 36-40, his Honour Morris J stated :

It is important to observe that section 28(1)(b) of the Act does not extend to a document merely because the document has been prepared for the purpose of submission to the Cabinet. Rather the purpose of the preparation of the document must be for submission for consideration by the Cabinet. Hence documents will not fall within the exemption in section 28(1)(b) of the Act just because they were prepared with the intention of physically placing them before the Cabinet. Rather it is necessary to ask whether, at the time a document was prepared, the only purpose, or one of the substantial purposes, for the preparation of the document was for the purpose of submission for consideration by the Cabinet.

Mr Bayne did not comment upon the possibility that in a particular case all the documents which were created to assist in the preparation of a submission might also be physically submitted to the Cabinet. But it is likely that if he had considered this possibility he would have concluded that the words of the exemption do not extend to documents which have been created, not for the purpose of being considered by the Cabinet, but for the purpose of preparing another document or documents to be considered by the Cabinet.

.... Typically information provided to Cabinet ministers will be in summary form; if all the information provided to Cabinet ministers to enable Cabinet to make decisions was in raw or primary form, the process would be unworkable. Sometimes a primary document, or raw information, will be prepared for submission to, and consideration by, the Cabinet. But when this occurs it is likely to involve relatively few documents; and it is likely to be confined to those that are politically important or politically sensitive.

.... Frankly it is far fetched to think that members of Cabinet would examine some hundreds of certificates of title. Not only would such a process be tedious, but it would be unlikely to provide facts, without further analysis, which would inform the decision Cabinet had to make.

A different conclusion can be reached in relation to those documents consisting of maps showing attributes about sites and areas of interest. It is realistic to think that, when such maps were produced, it was contemplated that Cabinet ministers would examine the maps and consider them. This would extend to maps, based upon certificates of title, showing land tenure in and around sites and areas of interest. .... in Re Olexander v Department of Premier and Cabinet to the effect that an executive summary, or a summarised document, put before Cabinet does not make the full report itself any less a document for consideration by the Cabinet than the summary. I certainly agree with the observation made in Olexander to this effect. ... A summary of a document is, in effect, the same document in a shortened form.

1. Mr Pizer correctly submitted that the present case is totally different to what his Honour considered in Ryan's case. In Ryan's case there were hundreds of certificates of title involved. Here, there are only two documents where s 28 exemption is claimed (Documents 6 and 20).
2. It was clear from the paragraphs of the Ryan decision (quoted above) that his Honour was influenced by his finding that it was "far fetched to think that members of a Cabinet would examine some hundreds of certificates of title". Here, there are only two documents (Documents 6 and 20) relating to s 28. The fact that Document 6 has some 87 pages does not, in my view, alter the fact that it would be likely that a number of Cabinet ministers would have read Document 6 prior to the Cabinet meeting and may have used it in their discussions as well as the summary of the document. Mr Krbaleski gave evidence that he has attended Cabinet meetings, and it is not uncommon for ministers to refer to the actual document as well as the summary document. This is particularly so, in this instance, as the matter under discussion (VRET) was likely to be of considerable interest and importance to a number of members of Cabinet.
3. Mr Whelen also referred to a decision of Judge Davis in Re Delta-Riva & Department of Treasury & Finance [2005] VCAT 2083; (2005) 23 VAR 396. That case concerned two documents that were part of a business plan for the Scoresby freeway.
4. In paragraph 44 of that decision, her Honour specifically found that the evidence did not establish that a substantial purpose of the case plan was that of submission for consideration by Cabinet. In this proceeding, there is direct evidence that Document 6 was prepared for the sole purpose of consideration by Cabinet. Therefore, the reasons of her Honour in the Delta-Riva case do not apply to this situation.
5. The third case that Mr Whelen relied on was Smith v Department of Sustainability & Environment (2006) VCAT 1228 (4 July 2006). That case was a decision of the then President Justice Morris and concerned documents that were prepared by KPMG in March 2003 in relation to the Seal Rock matters at Phillip Island.
6. Further, it was clear from the Minutes of the Cabinet committee which were put into evidence that the KPMG report was deliberated by Cabinet sub-committees. However, his Honour released part of the report because he was not satisfied pursuant to s 28(1)(d) of the FOI Act that those parts which were released had been deliberated on by Cabinet. His Honour then turned to s 28(1)(b). When dealing with that section, his Honour found that a report prepared for the purposes of government was different to a report being prepared for consideration of Cabinet. Under those circumstances, his Honour found that s 28(1)(b) did not apply.
7. Mr Pizer stated that the situation here is different from that in Smith's case because, in that case, his Honour found that the documents were prepared for consideration by government. In this particular instance, the documents were prepared for consideration by Cabinet. Further, Mr Pizer said that in relation to s 28(1)(b) in Smith's case was obiter because the matter had already been decided on a different point.
8. I agree with the submission of Mr Pizer in particular the submission that drew the distinction between considerations by government and considerations by Cabinet. Here, the evidence clearly supports the fact that Document 6 was prepared for consideration by Cabinet.
9. I am satisfied on the evidence that Document 6 was created for the sole purpose of submission for Cabinet consideration. Further, the document was submitted to Cabinet and summarised in the submissions themselves. However, in spite of the summary, I am satisfied that, on the balance of probabilities, because of the importance of the issue involved, that the document would have been read and discussed by a number of Cabinet ministers.
10. The next matter that I must consider is whether Document 6 is caught by s 28(3). That is, whether the document contains purely statistical, technical or scientific material. I agree with the submission of Mr Pizer in relation to this matter that :

Document 6 does not contain information that may be characterised as purely statistical, technical or scientific material. Rather, it contains opinions and analysis in relation to policy issues.

1. Thus I am satisfied that in relation to Document 6 the exemption pursuant to s 28(1)(b) has been made out and that document will not be released.
2. Because of my finding that Document 6 is exempt pursuant to s 28 of the FOI Act, I do not need to consider the claim for exemptions pursuant to s 30(1).

1. Even though Document 20 is out of numerical order with other documents, I will consider it now because a lot of the law and matters that I have referred to about Document 6 will apply to Document 20.
2. Document 20 is a letter dated 6 March 2006 from the respondent to the Department providing an assessment of the adequacy of the final version of the VRET BIA. The exemption claimed for Document 20 is pursuant to s 28(1)(c) in conjunction with s 28(1)(b) of the FOI Act on the basis that it is a copy of - or alternatively - a draft of a document that was prepared by VCEC for the purposes of submission to Cabinet for its consideration. Further, alternatively, an exemption pursuant to s 30(1) of the FOI Act is claimed in relation to that document.
3. Mr Pizer in an aide memoire at paragraphs 37 to 39 inclusive has summarized the evidence surrounding the s 28(1) claim in relation to Document 20. He states :

Paragraph 38 of Mr Corden's first statement provides that he signed Document 20, which was prepared for the sole purpose of being submitted to Cabinet for its consideration.

Further, paragraph 7 of Ms Poland's statement provides that Document 20 is identical to Attachment 4 of the Cabinet submission, except that Attachment 4 has an attachment number at the top right hand corner, whereas Document 20 does not.

And paragraph 9 of Mr Krabelski's third statement provides that Document 20 (with a very minor modification made at around the time he prepared the Cabinet submission) was Attachment 4 to the Cabinet Submission, and he summarised that document in the body of the Cabinet Submission.

1. It is also noted that Document 20 is only one page.
2. Mr Whelen in his submissions suggested that because Document 20 is addressed to an officer of a Department rather than Cabinet, it is unlikely that the document was prepared for consideration by Cabinet. He further said that by addressing the letter to the Department of Infrastructure, it was likely that the letter was for their information. Further, Mr Whelen stated that there was no evidence in the statements that Cabinet was asked to deliberate on whether or not to accept or endorse or approve Document 20. Rather, as Mr Corden conceded in cross-examination, what Cabinet was being asked to accept or endorse, or approve, was the proposal in the body of the Cabinet submission in relation to the introduction of the VRET scheme.
3. However, Mr Corden, in his evidence, accepted that he directed Document 20 to the Department of Infrastructure. He said he only did that because, in his position, it was usual unusual to send the documents straight to the Minister. Further, Mr Corden stated that the only purpose for creating Document 20 was for Cabinet consideration. Mr Corden further stated that it is usual for VCEC to write assessment letters on the assumption that Cabinet will consider the letter in its entirety and not just the summary. Further, Mr Corden stated -

If VCEC had expressed concerns about the BIA, details of those concerns would be attached to the Cabinet submission, and would 'therefore be taken into account in the Cabinet ... decision-making process.

1. In any event, Mr Corden stated that if VCEC did not express concerns about the BIA, the letter would still be prepared for the purposes of submission for consideration by Cabinet, so that Cabinet can be aware that VCEC considers the BIA to be adequate or otherwise.
2. Ms Poland also made the point that everything the Cabinet Secretariat sent to the Cabinet ministers is sent to them for their consideration, and she could not think of any reason why the Cabinet Secretariat would send a Cabinet submission to a Cabinet minister except for that purpose.
3. I accept Mr Pizer's submission that the use made of Document 20 supports the conclusion that the sole purpose for its creation was for submission to Cabinet for its consideration. Further, Mr Krbaleski gave evidence that Attachment 4 was prepared for the sole purpose of being submitted to Cabinet for its consideration. It will be remembered that Document 20 is a draft version of Attachment 4 and Attachment 4 has very few cosmetic differences and no difference of substance to Document 20.
4. I accept the evidence that has been given and, under those circumstances, I find that the creation of Document 20 was for the sole purpose of consideration by Cabinet.
5. Section 28(3) does not apply to Document 20 as it does not contain information that may be characterised as purely statistical, technical or scientific material. In fact, it contains opinions and analysis in relation to policy issues. Thus, s 28(3) does not apply.
6. In these circumstances, I find that the exemption pursuant to s 28(1)(b) of the FOI Act in relation to Document 20 is made out and it will not be released.
7. Bearing in mind that I have found that Documents 6 and 20 are exempt pursuant to s 28(1)(b), I need not consider the other grounds of exemption claimed by the respondent.

1. Document 7 is a file note of a meeting held on 26 September 2005 between two officers of VCEC and an officer of Sustainability Victoria (SV). The file note which is marked "Cabinet-In-Confidence" was prepared by the two officers then at VCEC, one of whom is presently on maternity leave (the officer on maternity leave) and the other who is in the United States undertaking further study. Section 30(1) of the FOI Act, which is the exemption relied upon by the respondent, reads as follows :

(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. In paragraphs 4 to 6 of Mr Corden's witness statement, he describes how Document 7 came into being and for what purpose -

The purpose of the 26 September meeting was to discuss SV's very preliminary strategy in anticipation of it preparing Document 1 for the VCEC to review.

I am informed by the Officer on maternity leave and believe that she and her then colleague at VCEC created the file note for their reference, and to later assist them, or any other VCEC officers subsequently assigned to work on this proposal, when reviewing Document 1 against VCEC's assessment criteria. The file note is based purely upon the Officers' recollection of events, and includes their opinions, or that of the SV Officer, about matters relating to the Government's policy proposal and options that were under consideration at that time. They are not, and do not purport to be, minutes of the 26 September meeting. As such, they are necessarily incomplete and may contain material that could mislead a reader if that person did not fully understand what has been written and the relevant context. I am informed by the Officer on maternity leave and believe that, if the file note were released, Officers in her position would be less inclined to create such notes in the future as they would become much more time-consuming to prepare if public release was thought likely.

Releasing Document 7 would disclose very preliminary consultations, including sharing of opinions on issues that might need to be covered in the analysis, that took place between the VCEC and officers of SV in relation to the development of a draft BIA. That consultation took place, and the opinions were expressed, purely for the purpose of VCEC's review process.

1. Mr Whelen has conceded that Document 7 complies with the requirement in s 30(1)(a) of the FOI Act. Therefore, the matters that I must consider in relation to the exemption claimed is whether release of Document 7 would be contrary to the public interest and whether the document contains purely factual material contained in the document.
2. At paragraph 7 of Mr Corden's fourth witness statement, he describes why he believes the release of Document 7 would be contrary to public interest :

(a) The document was prepared at a very early stage. The information contained in the document does not accurately reflect the content of Document 1, which itself is substantially different from the final version of the VRE BIA. As such, disclosure of Document 7 would be misleading and confusing, and could lead to ill-informed debate about material that may or may not have been considered by Cabinet in its decision making.

(b) As I have said in paragraph 23 of my First Statement, the success of VCEC's process of review would be severely compromised if preliminary and incomplete draft documents it receives or creates were to be disclosed under the FOI Act. That is because it is likely that some departments and agencies would not engage with the VCEC and its iterative review process early in the policy development process if at all - as such early engagement is, after all, a voluntary process - if it were thought that documents created for or during the review process would be released under the FOI Act.

(c) As I state in paragraph 24 of my First Statement, compromising the success of VCEC's review process would inevitably lead to a reduction in the quality of documents being provided to Cabinet, which in turn would lead to a reduction in the quality of the Cabinet decision-making process. This would be contrary to the public interest.

(d) The disclosure of Document 7 would cause reluctance in junior officers to freely record preliminary thinking, ideas and opinions discussed prior to the finalisation of all issues, as they would be concerned that such early thinking would be publicly critiqued. This would reduce the efficiency of the VCEC, which would be contrary to the public interest.

1. Mr Whelen submitted that the respondent has not proved that disclosure of Document 7 would be contrary to public interest. He stated :
   • There will be no confusion or debate if the memoranda were released
   • The frankness and candour ground has long been treated with scepticism by the Tribunal. Disclosure would not affect the frankness and candour of VCEC's staff. VCEC has a quasi-statutory duty to impart independent rigorous advice. Mr Corden was unable to give any evidence that anyone at the VCEC had ever done anything in the past, or refrained from doing something in the past, out of fear of disclosure under the FOI Act.
   • The quality of the Cabinet decision-making process would not be compromised by reasons set out in the last dot point in paragraph (92) above.
2. For the sake of completeness, I set out hereunder the contents of the last dot point in paragraph 92 of Mr Whelen's submissions :
   • The quality of the Cabinet decision-making process would not be compromised. Departments and agencies will still be required to prepare BIAs and will still be required to engage with the Respondent. In cross-examination, Mr Corden accepted that once a Minister determines that a BIA is needed, departments and agencies have no choice but to prepare a BIA and engage with the Respondent; such engagement is not voluntary. Further, Mr Corden conceded that departments and agencies would continue to engage with the VCEC even if the documents in dispute in these proceedings were released, and some departments and agencies would still engage with the Respondent early in the policy development process even if the documents in dispute were released. Further, he conceded that it is already the case that some departments and agencies defer their engagement with the Respondent until after the policy process is completed. It follows that disclosure of the documents in dispute could have no impact on the point in the policy development process at which such departments and agencies engage with the Respondent.
3. It is clear from Document 7 itself that it was prepared at a very early stage in relation to the preparation of the VRET. Further, it is clear from the document that the information contained in it does not accurately reflect the contents of Document 1, which document was substantially different from the final version of the VRE BIA.
4. Given those circumstances, I have come to the conclusion that the release of Document 7 would be likely to be misleading and confusing, and could lead to ill-informed debate about material that may or may not have been considered by Cabinet in its decision-making.
5. Pursuant to s 98 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Corden gave the evidence in relation to this matter from knowledge, information and belief.
6. Mr Whelen is correct when he states -

The frankness and candour ground has long been treated with scepticism by the Tribunal.

1. Clearly, VCEC officers have an obligation to act robustly in their analysis of a BIA including consideration of policy. However, there is a concern when important policy issues are at stake like at present that public servants should be able to communicate freely between themselves without concern that the record of what they say will become public. It has been held that in appropriate situations, it may be relevant that disclosure would be likely to have an adverse effect on the frankness and candour with which opinions, advice or recommendations are given in the future. Judge Wood VP in Bracks v Department of Premier and Cabinet (1999) 15 VAR 83 at 92 made it clear that in some situations release of documents could affect frankness and candour in the future. His Honour stated -

Questions of government policy and whether legislation ought to be amended to reflect government policy are political in nature which lie within the sovereignty of the Parliament. That is why Parliamentary debates occur, why proceedings in Parliament are afforded absolute privilege and may not be impugned by courts or tribunals for to do so is a contempt of the Parliament itself.

The formulation of policy by government entails a consideration of a host of factors, the execution of a balancing process in order to ascertain whether amendment to legislation is required and rests, in part, upon the advice of many people and bodies. This is part of the consultative or investigative processes, and if government cannot conduct this process freely and confidentially there is potential for the impairment of the consultative process because government, or for that matter, any member of Parliament, may not seek and canvas [sic] a range of views on the subject under consideration, whether from public servants, consultants or review committees if those communications may ultimately become public. The merits and demerits of any effects of a change to legislation should, in order to maintain the efficiency of government, remain within the confidence of the party seeking the advice ... It is upon the completion of this process that policy is formulated and legislation is then proposed in the form of a Bill for the consideration of Parliament. It is there that the public interest is preserved through the process of representative democracy. Bills are debated, often amendments are made to them and an Act of Parliament is passed.

In my opinion, there remains a real potential for the conduct of government to be inhibited in the investigative process involved in the formulation of policy if the opinions of those persons or bodies from whom or from which the government seeks advice, was sought in circumstances where it may become public. This may result in a reluctance on the part of the government to canvas [sic] advice from appropriate sources, or on the other it may result in inhibited advice from those persons or authorities providing it.

1. While I have come to the view that release of Document 7 may affect frankness and candour, by itself in this situation, I do not believe that would be enough to stop the document being released. However, I accept Mr Corden's evidence that in situations such as a BIA, it would be likely that if there was disclosure of the early considerations that needed to be made which Document 7 contains, it would lead to a request being made to VCEC later rather than sooner. That is, it is conceivable and likely that departments or ministers may be loathed to request VCEC to examine various policies and prepare a BIA at an early stage of the policy development. They may wait until the last possible opportunity. If VCEC was not requested to examine policies at a very early stage, I am confident that the viability of the policy and the effect that policy may have on various stakeholders would be badly affected. Under those circumstances, it is very likely that the Cabinet decision-making process would be compromised.
2. This, in turn, would mean that the Victorian public, and in particular the stakeholders of a particular policy, would be very likely to suffer as a result of consultation taking place at a later rather than an earlier time.
3. Also, I take into account that Document 7 was prepared at a very early time.
4. I accept the submission of Mr Pizer when he states :

The information contained in the document does not accurately reflect the content of Document 1, which itself is substantially different from the final version of the VRE BIA. As such, disclosure of Document 7 would be misleading and confusing, and could lead to ill-informed debate about material that may or may not have been considered by Cabinet in its decision making.

1. Further, I find that Document 7 was not relied on by Cabinet in making its decision to introduce the VRET scheme. As a consequence, its disclosure would not advance or promote any public interest in assessing any underlying merits of that decision.
2. Also, by next year, the VRE Act will be virtually redundant. This is because the Commonwealth Act has been passed and has received Royal Assent in September. With the proposed amendment to the VRE Act in Victoria, it is likely that its provisions will all be taken over by the Commonwealth legislation. In those circumstances, release of this document and documents relating to the VRE Act, would have little use in public debate.
3. Therefore, I find that release of Document 7 would be contrary to the public interest. Thus, taking into account the concession made by Mr Whelen in relation to s 30(1)(a), I find that s 30(1) has been made out.
4. After examining Document 7, in my view, s 30(3) does not apply because the document does not contain purely factual material as required by sub-section (3). Therefore, the exemption contained in s 30 has been made out and Document 7 will not be released. As a consequence, I do not have to consider the claimed exemption in s 35(1)(b) of the FOI Act.

1. Document 13 is a copy of the initial assessment memorandum in relation to the draft BIA prepared by SV with handwritten notations. Mr Whelen stated that he was not seeking anything in Document 13 that appeared in Document 12. As a result of this, the only part of Document 13 that the applicant now seeks is the handwritten notations. The respondent claims that Document 13 is exempt pursuant to s 30(1).
2. Document 16 is an assessment memorandum in relation to the draft BIA prepared by KPMG on behalf of the Department of Infrastructure (DOI). Again, the exemption that is relied on by the respondent in relation to Documents 13 and 16 is s 30(1) of the FOI Act. Also, again, Mr Whelen conceded that sub-section (1)(a) of s 30 was made out. Therefore, the matter now only concerned s 30(1)(b) and s 30(3); that is, the public interest and whether the document contains purely factual material.
3. Mr Corden in his third witness statement in paragraph 9 states why he believes it is likely that it is contrary to the public interest that Documents 13 and 16 be disclosed. He stated :

(a) VCEC's process of review is intended to encourage improvement in the quality of documents going to Cabinet, including through exploring a wide range of options for addressing a clearly identified problem. The success of this process would be severely compromised if preliminary and incomplete draft documents were to be disclosed under the FOI Act. That is because it is likely that departments and agencies would not engage with the VCEC and its iterative review process early in the policy development process if at all - as such early engagement is, after all, a voluntary process - if it were thought that documents created in the course of the review process would be released under the Act. In addition, the leading consultancy firms that assist agencies prepare this analysis would also be reluctant to provide early and incomplete drafts for comment if these drafts could be released under the Act;

(b) compromising the success of VCEC's review process in the manner described in the previous paragraph would inevitably lead to a reduction in the quality of documents being provided to Cabinet, which in turn could lead to a reduction in the quality of the Cabinet decision-making process. This would be contrary to the public interest; and

(c) further, the draft VRET BIA received on 20 February 2006 is different from the final version of the BRE BIA. Disclosure of documents commenting on the draft VRET BIA would therefore be misleading and confusing, and could lead to ill-informed debate about the material that may or may not have been considered by Cabinet in its decision-making. This would also be contrary to the public interest, particularly as the VRE Act is a public document and the merits of the policies embodied within it may be freely discussed;

(d) disclosure of Documents 13 to 16 under the Act would lead to VCEC officers being less frank and candid in preparing similar documents in the future; and to them providing some such feedback orally. Being able to express frank and candid criticisms of draft BIAs in a written form and in a confidential manner is vital to the success of the VCEC review process. There are two reasons for that. First, it allows for superior quality control and oversight processes by the Executives within the Commission's Secretariat and by the Commissioners. This promotes both consistency of advice over the course of the development of each BIA, and consistency of the treatment of similar issues between BIAs for different regulatory proposals. And second, providing frank and candid criticisms of draft BIAs confidentially is essential to not damaging on-going relationships with agencies and their advisors, so as to encourage them to proactively engage with VCEC early in the policy development process;

(e) accordingly, a reduction in that frankness and candour in the written feedback would reduce the effectiveness of the VCEC review process itself, which in turn would reduce the quality of documents being provided to Cabinet, which in turn would lead to a reduction in the quality of the Cabinet decision-making process. This would be contrary to the public interest;

(f) in addition, the disclosure of VCEC criticism of preliminary analysis in the draft documents prepared by agencies and their advisors, such as those critiques contained in Documents 13 to 16 would discourage agencies (and in turn their advisors) from providing their early thinking to VCEC in the form of such drafts, and thus the ability of VCEC to encourage them to explore a full range of policy options at the early stage in the policy development process. This would lead to the BIA process being less effective at ensuring Cabinet has the opportunity to consider the merits of a full range of policy options.

1. Further, Mr Corden in his oral evidence elaborated on what he had said in his statement. Mr Corden's oral evidence has been helpfully set out by Mr Pizer at paragraph 79 of his final submissions :

(a) early engagement with agencies and Departments about BIAs increases the probability of exemplary analysis in BIAs, and the VCEC is striving to achieve the result that more BIAs contain exemplary analysis, and fewer BIAs contain inadequate analysis;

(b) disclosure of the documents in dispute is likely to discourage agencies and Departments from engaging with the VCEC at an early stage, and is therefore likely to diminish the quality of BIAs produced in the future;

(c) disclosure of the documents in dispute would lead to VCEC officers giving more oral advice 'at the margins', and would lead to them preparing written documents in a less direct way.

1. At paragraph 90 of the applicant's submissions, Mr Whelen sets out the reasons why it would not be contrary to public interest if Documents 13 and 16 were released :
   • Mr Corden's evidence is that Documents 13 and 16 identify shortcomings in the KPMG draft BIA .... Further, Mr Corden's evidence is that Documents 13 and 16 contain criticisms of the analysis in the KPMG draft BIA .... In the circumstances of this case disclosure of those concerns would be overwhelmingly beneficial to the public (for reasons on which the Tribunal will be addressed orally in relation to the public interest override) and hence disclosure would be in the public interest.
   • There will be no confusion or debate if the memoranda were released.
   • The frankness and candour ground has long been treated with scepticism by the Tribunal. Disclosure would not affect the frankness and candour of VCEC's staff. VCEC has a quasi-statutory duty to impart independent rigorous advice. Mr Corden was unable to give any evidence that anyone at the VCEC had ever done anything in the past, or refrained from doing something in the past, out of fear of disclosure under the FOI Act.
   • The quality of the Cabinet decision-making process would not be compromised. Departments and agencies will still be required to prepare BIAs and will still be required to engage with the Respondent. In cross-examination, Mr Corden accepted that once a Minister determines that a BIA is needed, departments and agencies have no choice but to prepare a BIA and engage with the Respondent; such engagement is not voluntary. Further, Mr Corden conceded that departments and agencies would continue to engage with the VCEC even if the documents in dispute in these proceedings were released, and some departments and agencies would still engage with the Respondent early in the policy development process even if the documents in dispute were released. Further, he conceded that it is already the case that some departments and agencies defer their engagement with the Respondent until after the policy process is completed. It follows that disclosure of the documents in dispute could have no impact on the point in the policy development process at which such departments and agencies engage with the Respondent.
2. Further, Mr Whelen stated that the VRET scheme and the VRE Act in relation to wind energy have gone ahead without giving the public sufficient information as to how the statistics quoted by the various authorities were calculated. Further, it was submitted that the cost of wind energy would far outweigh its benefits and the community has a right to know how the cost is to be calculated rather than just a bald statement that it would cost households an extra dollar on their electricity bill. Further, he said that there is no amount allowed for in the indirect cost that will be passed on to consumers through business using more expensive electricity.
3. It is difficult to understand how the contents of these two documents (13 and 16) would be "overwhelmingly beneficial" to the public. As far as Document 13 is concerned, releasing the handwritten notes without the report to which they are commenting would be a useless exercise because it would not enlighten the reader as to what context the comments were made. Further, reading the comments without the text to which they are commenting on would create confusion and very likely the wrong impression.
4. I agree with the comments of Mr Pizer that the draft VRET BIA received on 20 February 2006 is different from the final version of the VRE BIA. Therefore, disclosure of these documents would be misleading and confusing and could lead to ill-informed debate about the material that may or may not be considered by Cabinet in its decision-making.
5. Further, in my view, disclosure of these documents would compromise or undermine the integrity and the success of the respondent's review process which, in turn, would lead to a reduction in the quality of the Cabinet decision-making.
6. In relation to the frankness and candour argument adopted by Mr Pizer, I refer to what I have said in relation to Document 7. The same applies here.
7. I also take into account what Judge Wood said in Bracks' case that the Bill has been presented to Parliament and passed in the form of the VRE Act and it is there that the "public interest is preserved through the process of representative democracy". However, I am concerned that the delaying of department's engagement with the respondent for a BIA may cause the respondent's work to become more difficult and less value to the community. I accept what Mr Corden said in his oral evidence that early engagement with agencies and departments about BIAs increases the probability of exemplary analysis of BIAs. Further, that disclosure of the documents is likely to discourage agencies from engaging with VCEC at an early stage.
8. Weighing up all the considerations in relation to the public interest as referred to in s 30(1)(b), I have come to the conclusion that it would be contrary to the public interest that Documents 13 and 16 be released.
9. Further, s 30(3) in my view does not apply to Documents 13 and 16 as the documents do not contain any purely factual material.
10. Under these circumstances, Documents 13 and 16 will not be released as the exemption that has been claimed has been made out by the respondent.

1. Both Documents 17 and 18 are described in the schedule dated 3 March 2006 as being "internal memorandum", attaching to draft assessment letter to DOI in relation to the BIA prepared by KPMG, with handwritten notations". It is noted that Mr Whelen said that his client was no longer seeking the draft letters referred to in Documents 17 and 18. As a result, the exemption that is relied upon by the respondent is s 30(1).
2. Both Documents 17 and 18 relevantly contain the first draft of a memorandum to Mr Corden and Document 18 contains a further memorandum to Mr Corden, which memorandum relates to Document 20.
3. In particular, at paragraphs 11 and 12 of Mr Corden's third witness statement, he describes Documents 17 and 18 as follows -

(a) Document 17 is a memorandum addressed to me about the Assessment letter together with a first draft of it. That first draft contains handwritten opinions about how the draft could be improved, and those opinions were expressed by officers of the VCEC;

(b) Document 18 is a memorandum addressed to me about the Assessment letter together with a second draft of it. The second draft incorporates the handwritten suggested changes to the first draft, and contains my handwritten opinions about how the second draft could be improved;

The memoranda in Documents 17 and 18 contain opinions expressed by officers of VCEC in relation to the adequacy of the VRE BIA. They also contain an opinion that the draft letter was appropriate for me to send to the Department. Those opinions were expressed during and for VCEC's process of reviewing the VRE BIA.

1. In relation to these documents, Mr Whelen again concedes that these documents contain the criteria set out in s 30(1)(a). Therefore, the issue is whether or not it would be contrary to the public interest for these documents to be released and pursuant to s 30(3) whether s 30 applies or not by reason only of purely factual material contained in the document.
2. At paragraph 39 of Mr Corden's first witness statement, he gives his view as to why it is contrary to public interest that these documents be disclosed. He states :

In my view, it is contrary to the public interest to disclose the preliminary workings of an agency, such as those contained in documents 17-19, as it may constrain the internal debate about the final form of the document. Such a disclosure will also be misleading and confusing and could lead to ill-informed debate about why the drafts were revised. In addition, I cannot see how the public interest would be served in any way by their disclosure.

1. Further, in paragraph 13 of Mr Corden's third witness statement, he gives a further detail as to why he believes it will be contrary to public interest for Documents 17 and 18 to be released. He states -

(a) the disclosure of paragraphs 2, 3, 5 (the last sentence only), 6, 7 and 8 of the memoranda would disclose the substance of part of Document 6, which would, as I understand it, involve the disclosure of part of a Cabinet submission;

(b) the disclosure of paragraph 9 of the memoranda would disclose the substance of part of Document 20, which would also, as I understand it, involve the disclosure of part of a Cabinet submission;

(c) it would be contrary to the public interest to disclose part of a Cabinet submission; and

(d) I cannot see how the public interest would be served in any way by disclosure of the memoranda.

1. Mr Whelen submitted that the respondent had not proved that disclosure of the memorandum would be contrary to the public interest. At paragraph 84 of his submissions, he stated :
   • Given that the Applicant is working on the assumption that the assessment letter at Document 20 expresses concerns about the BIA, the Applicant submits that disclosure of any documents, such as the memoranda, which shed light on those concerns would be overwhelmingly beneficial to the public (for reasons on which the Tribunal will be addressed orally in relation to the public interest override) and hence would be in the public interest.
   • There will be no confusion or debate if the memoranda were released
   • The frankness and candour ground has long been treated with scepticism by the Tribunal. Disclosure would not affect the frankness and candour of VCEC's staff. VCEC has a quasi-statutory duty to impart independent rigorous advice. Mr Corden was unable to give any evidence that anyone at the VCEC had ever done anything in the past, or refrained from doing something in the past, out of fear of disclosure under the FOI Act.
   • The reference to Cabinet documents is a furphy. It does not necessarily follow that disclosure of a document would be contrary to the public interest just because the document also happens to be associated with or intimately connected to Cabinet documents.
2. In relation to the matter of frankness and candour, I have dealt with that fully in relation to previous documents that I have discussed and the same principles apply here.
3. Weighing up the matters argued by Mr Whelen, I have taken the view that these documents would be unlikely to further the debate about wind energy or renewable energy in general. In fact, I have formed the view that they would be likely to confuse and mislead as the memoranda were not final drafts.
4. I accept what Mr Pizer submitted that the release of these documents would be contrary to the public interest because :

In the circumstances, the disclosure of the memoranda in Documents 17 and 18 would, in summary, be contrary to the public interest because :

(a) such disclosure would involve the disclosure of part of the Cabinet Submission; and

(b) Documents 17 and 18 were not relied upon by the Cabinet in making the decision to introduce the VRET Scheme, and their disclosure would therefore not advance or promote any public interest in assessing the underlying merits of that decision.

1. I agree with what Mr Pizer has said above and, on balance, I am of the view that it would be contrary to public interest for Documents 17 and 18 to be released.
2. Further, as to s 30(3), it is not appropriate that I apply that sub-section. Documents 17 and 18 do not contain purely factual material.
3. Under those circumstances, Documents 17 and 18 will not be released.

1. All the documents in dispute in this proceeding except Documents 6 and 20 are subject to what is known as the public interest override in s 50(4) of the FOI Act.
2. Section 50(4) reads as follows :

(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. Mr Whelen at paragraph 107 of his submissions sets out why the public interest override should apply to the documents, the subject of this proceeding (except Documents 6 and 20). He states :

Disclosure of the documents in dispute will advance or promote the public interest in :

(a) fully informed public debate about climate change and greenhouse gas emissions;

(b) fully informed public debate about whether wind power generation projects are likely to deliver the economic and environmental benefits touted by project developers, their peak body and government;

(c) fully informed public debate about the true costs and side effects of wind power generation projects, particularly as borne by rural communities;

(d) fully informed public debate about the departmental advice provided prior to the passing of the VRE Act, and in particular whether or not that advice canvassed the matters above;

(e) fully informed public debate about the advice provided by the Respondent prior to the passing of the VRE Act, and in particular whether or not that advice canvassed the matters above;

(f) fully informed public debate about the sources of any of the abovementioned advice (and, conversely, the sources not relied on); and

(g) fully informed public debate about whether the VRE Act is likely to deliver the economic and environmental benefits touted by government.

1. Mr Pizer has correctly submitted that the override may not be invoked in respect of a document unless the following three conditions are satisfied :

(a) first, the applicant's asserted interest in disclosure is a 'public' interest in disclosure;

(b) secondly, the Tribunal finds that disclosure of the document advances or promotes the asserted public interest; and

(c) thirdly, the Tribunal finds that the public interest 'requires' the disclosure of the document (see Richards v Transport Accident Commission [2005] VCAT 1444 at [62].

1. While I accept that many citizens of Victoria are extremely interested in replacing fossil fuel energy with renewable sources of energy, such as wind, and there is considerable debate about this issue, it does not necessarily mean that release of the documents in this proceeding would be in the public interest.
2. In Secretary to the Department of Justice v Osland [2007] VSCA 96 at [73]- [74], [113]; Secretary to the Department of Justice v Osland (No 1) [2007] VAR 425, the Court of Appeal emphasised that the operation of the override depends on the circumstances of the case (see [114] (Ashley JA). Given the reasons that I have already referred to in dealing with public interest considerations in relation to each of these documents, it is difficult to see how the public interest would be advanced by disclosure of the documents.
3. Mr Whelen made it clear at the opening of his client's case that his client was concerned with data. The only document that concerned data in this proceeding is Document 6. However, s 50(4) does not apply to Document 6 as that was an exemption pursuant to s 28. Therefore, it cannot be said that, in any way, the public interest would be advanced by provision of data from any of the other documents.
4. It is insufficient to say that because the public are interested in renewable energy and wind energy in particular, they would be interested in these documents. I find it very difficult to see how the release of the relevant documents herein would, in any way, advance the public debate, about the benefits or detriments of wind energy in particular or renewable energy in general. It was made clear in the first Osland case that there would only be public interest in disclosure of a document if that interest arises from or is somehow anchored in the particular circumstances of this case (see Victorian Administrative Law Vol 2 [50.440]). In the circumstance of this proceeding, it is difficult to see any advancement of public interest from the release of these documents.
5. As I have already said, I find it difficult to understand how the release of these documents could promote the applicant's asserted public interest in obtaining data. Release of these documents would do no more, in my view, than contribute to ill-informed debate in the community.
6. It is also noted that for s 50(4) to be activated, there is a "stringent test" as the word "requires" is synonymous with "demands" or "necessitates" and there is a "sense of imperative". See Secretary to the Department of Justice v Osland (No 2) [2009] VSCA 69 at [22]; also see Osland v Secretary to the Department of Justice [2008] 234 CLR 275 at [100] and [115] per Kirby J.
7. In Re Just v Department of Justice 10 VAR 126 at 129, Macnamara DP as a member of the Administrative Appeals Tribunal, stated what is required to invoke the public interest override. He stated :

In addition, the imperative force of the word 'requires' in the subsection should not be ignored. The public interest will not require the release of otherwise exempt documents if the public benefit in view can be achieved by other means than by overriding exemptions otherwise available under the Freedom of Information Act. Likewise, the public interest will not require release, unless the release is clearly adapted to achieve relative public benefit.

1. In this particular instance, because of the reasons I have stated relating to the public interest in s 30(1), I find that the release of these documents would not achieve a relevant public benefit and therefore the public interest does not require them to be released.
2. Under those circumstances, I find that the public interest override does not apply and for the reasons stated above, no document will be released and, as a result, the decision of the respondent will be affirmed.