7. During the budget process each year, departments submit funding proposals for the following financial year for Cabinet's consideration and decision. Any pre-election commitments form part of departments' submissions.

8. Accordingly, after the Government had been sworn in, DTF prepared the Document for the purpose of briefing the Treasurer on the LFS commitments that would be considered by Cabinet during the budget process. The Document analysed and assessed the financial impact of the LFS.

9. The majority of advice on budget submissions from departments is provided to the Treasurer and Cabinet Committees by DTF from February each year. However, it is usual to advise on estimated fiscal impacts of expected key submissions when relevant prior to February. In this instance, advice was provided earlier. Had the Document not been prepared, the analysis and assessment would have been included in Cabinet briefs (sic).

1. Leave was granted for Mr Jellis to re-open cross-examination on a number of occasions. Objection to various lines of questioning were dealt with during the course of cross-examination and re-examination of the witness. The substance of Ms Skilbeck's responses to permissible questioning is summarised below.
2. In 2014 Treasury provided a costing service to all ministers. The Opposition had not utilised this service prior to the election. To prepare for the possibility of a costing request, Treasury, nonetheless, kept close track of pre-election commitments being made during the election campaign.
3. Without recalling the date of this, Ms Skilbeck said the DTF commenced analysis of the LFS document released on 27 November 2014, just prior to the election. The LFS contained a brief description of initiatives and costing commitments from the then Opposition, some of which commenced in years 2, 3 or 4 of the forward estimates period.
4. As we now know, Labor succeeded to Government after the 2014 election.
5. Document C, the briefing paper, was prepared during December 2014 following the election. Each initiative in the LFS was fully scoped by the DTF in the briefing to the Minister for budget submissions for consideration by the Cabinet.
6. Ms Skilbeck estimated the Treasurer would have received Document C within a couple of days of completion and signing off by Ms Skilbeck on 22 December 2014.
7. Ms Skilbeck was questioned by Mr Jellis about the process for preparing the funding proposals or the budget submissions for a forthcoming State Government budget to which paragraphs 7 and 9 of her affidavit referred respectively and the process around developing the pre-election commitments as proposals taken to the Cabinet.
8. Essentially, Ms Skilbeck agreed with Mr Jellis' proposition that there are two significant steps in the life cycle of a budget proposal before it reaches the Expenditure Committee. The first involves passage through the usual briefing approval processes and signing off by briefing officers and the senior executive group member (customarily the Deputy Secretary) and/or the Secretary of the Department. The second step involves consideration of the proposal and, if necessary, signing off by the responsible Minister.
9. The form a budget proposal takes may vary from a pre-election promise made during an election campaign, although, as Ms Skilbeck said, pre-election commitments always formed part of the DTF's budget submissions:"... the pre-election commitments are always addressed in the department's submissions. It's a matter of the nuance and the detail that departments bring to further analysis of those initiatives."[22] And "So the LFS document literally has one line description of an initiative and a costing. That leaves a lot of interpretation as to scope and detail and that something that is fleshed out with the government of the day post the election. Then both that and a whole lot of the experience and understanding of the specific services is brought to bear by the department in further scoping that proposal. So from one line in the LFS a fully scoped proposal will be presented by the department to the minister to submit to budget consideration by Cabinet. So there is a significant amount of work to scope these initiatives but if they are used in the LFS document they will be presented in a budget submission."[23]
10. The substance of this evidence was repeated during re-examination, that is to say, the more detailed budget proposal following scoping of the initiatives was related to the commitments stated in the LFS document.
11. In December 2014 no budget proposals had been submitted by a Minister to the Cabinet for the annual State budget. The Treasurer was, nonetheless, required to release a budget update by around 15 December 2014. On this occasion, within a few weeks of forming the new Government, the budget update had included a small number of new proposals.
12. The budget process to which paragraph 7 of Ms Skilbeck's affidavit referred, commenced in January/February 2015. Although, as happened in this case, advice was given on the fiscal impacts of expected key submissions earlier.
13. Ms Skilbeck's evidence was to the effect that the decision to prepare the briefing document for the Treasurer followed the recent past practice of providing advice on estimated fiscal impacts of key submissions before advice on departmental budget submissions was provided to the Treasurer and Cabinet Committees from February each year.
14. Ms Skilbeck said an overview of the state of play of all commitments made in the LFS would still have been necessary for the budget papers, had the analysis and assessment in Document C not been provided in December 2014. In this case, the Government had subsequently requested an overview of the progress of commitments, that is to say the percentage of commitments implemented, which Ms Skilbeck said was included in the 2015/2016 Budget papers.
15. Budget Paper No. 3 published in May 2015 contained that overview.[24] An extract: 'Labor's Financial Statement 2014 - Summary Report' was tendered during re-examination. The DTF relied on the Summary Report document only to the extent that it established that the entire LFS was considered by the Cabinet and had been included in the 2015/2016 budget.
16. Under further cross-examination Ms Skilbeck was taken to the content of the Summary Report.[25] She acknowledged that when Document C was prepared in December 2014 the DTF had no way of knowing that the budget would include allocations for all of the initiatives in the Summary Report, summarising as it did, events occurring after budget decisions had been made.
17. The applicant placed particular reliance on Ms Skilbeck's use of the phrase: "would be considered" when in paragraph 8 of her affidavit she described the preparation of Document C as being for the purpose of briefing the Treasurer on the LFS commitments that she deposed would be considered by Cabinet during the budget process.
18. I have already mentioned Ms Skilbeck's evidence that the decision to prepare the briefing document was based on the recent past practice of providing advice on estimated fiscal impacts of key submissions before providing advice on departmental budget submissions.
19. Under further cross-examination, Ms Skilbeck confirmed that December 2014 had been her first experience of working in a department during a change of government and preparation of a budget proposal for a first-year government.
20. The following line of question and answer ensued:[26]

MR JELLIS: Budget Paper No.3, you're referring there to a document that was prepared in --? - May, published in May.

2015? - It's Budget Paper No. 3, the title is Services, and if I recall the page it was the end of chapter 3.

This period that you're describing over 2014-2015, as I understand the chronology this was the first time that you were within a department at the time that there was a change of government, is that right? --- For the first year of government, yes, that's correct.

I suppose I should just put to you directly; when you talk about election promises being commitments that would be considered by the Cabinet can I suggest what you're really describing is things that the department considered might be considered by Cabinet having regard to what had been promised during the election campaign but there was no certainty about that? - - - It's difficult to ascribe certainty too much, but I was blessed with a number of very experienced colleagues who had been through a first-year budget and a first-year government and serving them, and that had been the past practice as well for the four years prior.

So picking up on that, I suppose it would be fair to describe it as informed speculation about what was going to happen next? - - - Yeah. Recent past practice would suggest it would have, yeah.

HER HONOUR: would have been considered, that's the end of the answer isn't it, recent past practice would suggest that it would have been considered? - - - Yes, yes and the significance of these sorts of documents in recent years, as in the past decade, gives them a significance that makes it a very likely scenario.

MR JELLIS: I'm sorry, I do need to follow up on that answer. Which documents are you talking about there? - - - The Labor, the LFS, the Labor Financial Statement and similar documents that all major parties release whether they're government or the alternate government prior to an election that had a set of fully costed policy commitments. They've got a much more greater significance these days as we've seen this past week for the federal election. I mentioned before that DTF was doing a costing exercise and providing that service to all major parties in 2014. In the next election in this state that will be the role of the parliamentary budget officer and that's already the custom in the Commonwealth, which changes the future approach to this period, election period, and costings (sic).

1. Ms Skilbeck continued by indicating that at the time Document C was prepared, the DTF had reviewed recent past practice in two previous elections (2006 and 2010). Ms Skilbeck could not recall the specific documents published by the two parties before the 2006 election, although she did recall the Liberal party had released a statement before the 2010 election and after the Coalition took government the practice described in her evidence had been followed.
2. When read in context, I did not understand Ms Skilbeck's responses set out above to amount to acceptance of the proposition that her belief at the time that the issues on which Document C advised the Treasurer would be considered by the Cabinet was no more than informed speculation. Rather, under cross-examination Ms Skilbeck had not resiled from the position that Document C was prepared for the purpose of briefing the Treasurer in relation to the pre-election commitments and costings outlined by the LFS, to be considered by the Cabinet.
3. Moreover, whilst Ms Skilbeck could not say with certainty that the pre-election commitments might be considered by the Cabinet, her evidence was to the effect that, at the time Document C was prepared she believed it very likely that the pre-election commitments would be considered by the Cabinet. Ms Skilbeck's belief in this regard had been informed by the significance placed on documents such as the LFS and similar documents released by all major parties containing a set of fully costed policy pre-election commitments in the recent past and by advice from colleagues with experience of the first year budget process for a first-year government.
4. Ms Skilbeck's evidence during re-examination relevantly emphasised three matters. Firstly, despite changes in detail the budget proposal ultimately submitted to the Cabinet still related to the pre-election commitments: "There's obviously a lot more detail in scope, you know, geographic scale, method of delivery, those sorts of questions, that is needed to provide sufficient material for a budget proposal, budget submission into budget process."[27]
5. Secondly, at the time Document C was prepared Ms Skilbeck had expected each of the pre-election commitments in the LFS would form part of departmental budget proposals to the Cabinet.
6. Lastly, pre-election commitments will, Ms Skilbeck said, form part of budget proposals to the Cabinet and, as they involve expenditure, Treasury not the departments prepare the submissions ".. if they require expenditure. So I'm making the point that the LFS includes commitments around nature of revenue as well and those are submissions that are done by Treasury, not necessarily through the process that we've discussed(sic)." [28]
7. Among other things, Ms Skilbeck's evidence relevantly established that:
   • ➢ At the time of preparation of Document C, pre-election commitments customarily formed part of the budget proposals to the Cabinet.
   • ➢ The briefing was consistent with the recent past practice of advising the Treasurer on the estimated fiscal impact of expected key submissions (in this case pre-election commitments and costings) in advance of the development of budget proposals/submissions from February each year.
   • ➢ Based on past practice, at the time, Ms Skilbeck had expected each of the pre-election commitments would be included in departmental budget proposals to the Cabinet.
   • ➢ As it turned out, more detailed versions of these commitments were subsequently included in the budget proposals/submissions to the Cabinet.

1. It has been said that for a document to come within the Cabinet document exemption, it must fit squarely within one of the exceptions in section 28(1) of the Act.[29]
2. As mentioned, the DTF carried the onus of establishing that the briefing paper, Document C, fitted squarely within the category of documents exempted by section 28(1)(ba).

1. High Court authority tells us, among other things, that construction of section 28(1)(ba) begins with consideration of the text itself. The language employed is the surest guide to legislative intention and the meaning may require consideration of the context. The latter includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[30]
2. As mentioned, the Act is remedial legislation which requires that where any ambiguity is encountered the rights conferred by the Act be construed liberally and exceptions narrowly.[31] That said, I accept Mr Pound's submission, also based on High Court authority, that other provisions revealed by a statute, when properly construed may and, under the Act, do qualify the underlying purpose.[32] Any interpretation of section 28(1) must take into account the intention expressed by Parliament to protect the decision-making processes of Cabinet, both when enacting the Act in 1982 and when in 1993 section 28(1)(ba) was inserted to extend the Cabinet document exemption to briefing documents.[33]
3. It has been accepted that Document C satisfies the first limb of section 28(1)(ba) as a document prepared for the purpose of briefing the Treasurer. Furthermore, it was never the case that Document C was prepared for the purpose of being taken into Cabinet at some later stage.
4. In this case, the rights conferred by the Act must give way if, on the evidence to hand, a substantial purpose at the date of preparation of Document C was to brief the Treasurer in relation to issues to be considered by the Cabinet. What matters is the purpose for which the document was prepared at the time it was prepared. Where the sole or a substantial purpose was to brief a Minister in relation to issues to be considered by the Cabinet the document is exempt. In my view, nothing in the language used in section 28(1)(ba) or by reason of the subsection's context suggests that the protection conferred by section 28(1)(ba) is lost if, for example:
   • ➢ the issues to be considered by the Cabinet on which a Minister is advised in a document that was never intended to be placed before the Cabinet, are subsequently developed or finessed for the purpose of placing a formal proposal/submission before the Cabinet; or
   • ➢ for one reason or another, the issues to be considered by the Cabinet when the briefing document was prepared never reach the Cabinet.

1. The principle constructional question raised by Mr Jellis concerned the meaning of the transitional phrase "to be considered".
2. Mr Jellis submitted the phrase "to be considered" was binary "with an aspect of futurity to it."[34] Properly construed, so the submission went, section 28(1)(ba) required a significant degree of certainty (not 100% certainty though) around both whether the issue or issues will go to the Cabinet and the form in which the issue or issues will go to the Cabinet to satisfy the requirement that the issues about which advice was given in Document C were to be considered by Cabinet.[35]
3. On the facts of this case, the Tribunal should find that Document C was not exempt.

1. Mr Pound submitted Ms Skilbeck's evidence of her expectation that the issues to which the briefing paper related would be considered by the Cabinet, based as it was on the practice at the time Document C was prepared, should be sufficient to establish this as the substantial purpose of the document.
2. Mr Pound submitted it is sufficient that there was, at the time of preparation of the briefing document, an intention or expectation (in this case the latter based on examination of past practice) that the issues (here the pre-election commitments and costings) to which the document relates will be considered by the Cabinet. This is enough, notwithstanding likely changes in the form and detail of the issues ultimately considered by the Cabinet.[36]
3. A finding that it was not enough that an issue probably will be considered by the Cabinet would, Mr Pound submitted, set the burden impossibly high.

Tribunal case law on the application of the exemption

1. Both parties referred me to decisions of the Tribunal: Environment Victoria Inc v Department of Primary Industries;[37] Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission;[38] and Fyfe v Department of Sustainability & Environment-FOI Unit.[39]
2. Each case was decided on its facts.
3. Mr Jellis placed particular reliance on the line of cases in which it was accepted that the likelihood of Cabinet considering the issues from time to time was said not to be sufficient to attract the protection of the Cabinet document exemption, rather the briefing document must have been prepared in immediate contemplation of such Cabinet consideration.
4. This statement has its genesis in the decision of Deputy President McNamara (as he then was) in Re Thwaites v Department of Health & Community Services.[40]
5. In 1996, in Thwaites the Deputy President rejected the submission that the documents for which exemption was sought under section 28(1)(ba) met the requirements of the provision. As to one such document, the Deputy President relevantly observed there was nothing in the terms of the document or in the direct evidence of the witness "to suggest that this report was prepared in the immediate contemplation of a discussion in Cabinet. The Metropolitan Ambulance Service has been a most controversial subject, both for the present Government and its predecessor. There is every reason to think that its problems will be discussed by Cabinet from time to time. However, that does not advance the status of this document beyond the status of the background reports...."[41]
6. In 2013, in Environment Victoria Inc, the Tribunal relevantly considered the Cabinet document exemption in respect to a number of documents. These documents were prepared by the respondent in the process of developing the Coal Development and Allocation Strategy. The documents in question had the character of briefing documents. The key question according to the Tribunal was whether the Strategy was an issue to be considered by the Cabinet.
7. In Environment Victoria Inc, whilst this was noted by the Senior Member, the fact that many months had elapsed between the preparation of the Strategy in February 2011 and its consideration by the Cabinet in December 2011, with the possibility that the issues considered by Cabinet were not the same as those dealt with in the briefings, was not germane to the outcome of that case.
8. As it turned out, the Tribunal found (as in the present case) that the components of the briefing, albeit much more developed and extensive, had made their way into the documents submitted to Cabinet. The more significant issue in determining whether the exemption applied, was the Senior Member said, the level of certainty which the respondent had as to the Minister's position in relation to the Strategy. On the facts of that case, the Senior Member concluded the situation when the briefings were prepared in February 2011 had been too uncertain for the exemption to apply.[42] The matters to which the Senior Member paid particular regard are set out in the following extracts from his decision (citations omitted):[43]

37 Mr Hider said that when the Department prepared the documents, its purpose was to brief the Minister about issues which it had a reasonable expectation would be considered by the Cabinet. From the content of the documents and from the nature of the subject matter I can understand Mr Hider's statement that given the sensitivity of the issue, and the scale of the economic impact on the State, a decision on the Strategy was 'always going to be made by Cabinet', rather than be left for the decision by the Minister alone. And (although it is not determinative) that is what in fact transpired. The confidential witness statement of Mr Hider, and the confidential attachments to it, include Cabinet documents reflecting the process by which the matter was in due course dealt with by the Cabinet.

38 Ms Acreman submitted however, that the respondent did not have the requisite intention and expectation that the strategy would be considered by Cabinet. She submitted that because (as Mr Hider said in evidence) the incoming Coalition government did not have a policy in relation to coal allocation coming into the 2010 election, and it was not known what the Minister's position was prior to the 2 February 2011 meeting with him, it would be stretching s28(1)(ba) too far (especially given the general principle in favour of disclosure underlying the FOI Act) to conclude that at that point the Strategy would be considered by Cabinet.

39 I agree. The words of Deputy President McNamara... in Thwaites... are equally applicable here, in relation to the issue of coal allocation: It too is a

most controversial subject, both for the present government and its predecessor. There is every reason to think its problems will be discussed by Cabinet from time to time. However, this does not advance the status of this document....

40 Again similarly to Thwaites, there is nothing in the terms of documents 4, 7 and 7.1 here to suggest that they were prepared in the 'immediate contemplation' of a discussion in Cabinet. I accept Mr Batskos' submission that as long as the terms of s28(1)(ba) are satisfied, the effluxion of time does not prevent it from applying. Nor is it necessarily fatal that no decision has been formally made that this matter would be taken to Cabinet. However, I find that in the uncertain circumstances of the initial meeting with the Minister in February 2011 described above, it cannot objectively be concluded that these documents were prepared for the purpose of briefing the Minister in relation to issues 'to be considered' by Cabinet, in the sense required by s28(1)(ba).

41 Nor do I accept that the documents in this particular case form part of a continuum of material in relation to issues 'to be considered by the Cabinet', which commenced with the intention of the former Minister to take the Strategy to Cabinet in 2009, and continued on until the consideration by the Cabinet of the new government in December 2011 (and indeed, would continue up until the time when the matter is finally definitively dealt with by Cabinet). Whilst Mr Hider might be confident in view of his knowledge of the history and practical implications of the Strategy that it would be taken up by the new government, it is stretching the meaning of s28(1)(ba) too far to say that applies in circumstances where the new government had in fact given no indication of what its policy was. Mr Hider said that in the briefing he was in effect suggesting in a 'polite' way that this is a matter which should go to Cabinet....

1. Hennessey was decided by another Member of the Tribunal some months after Environment Victoria Inc. It too dealt with the Cabinet Document exemption under section 28(1)(ba). On this occasion, based on the evidence, the Member concluded the documents were exempt. In doing so, the Tribunal relied on the Senior Member's interpretation of the phrase "to be considered" contained in paragraph 40 of Environment Victoria Inc and set out above.[44]
2. Whilst the Supreme Court granted leave to appeal in Environment Victoria Inc on questions of law relating to the application of section 28(1)(ba) by the Tribunal, the appeal did not proceed.
3. Mr Jellis, nonetheless, sought to draw parallels between the facts in Environment Victoria Inc and the present case. Firstly, the period of time between the preparation of the briefing to the Treasurer and the time budget proposals would have been submitted to the Expenditure Review Committee of the Cabinet. Secondly, the many factors that might bear on what would ultimately be included in a budget proposal. Lastly, the uncertainty about whether a pre-election commitment would form part of a budget proposal and about whether the form and content of a budget proposal would bear any resemblance to the less detailed pre-election commitments and costings.
4. Mr Jellis also sought to demonstrate that on the facts of the present case the briefing was not prepared in immediate contemplation of a discussion in Cabinet. He submitted "there wasn't the immediate contemplation of the discussion of these issues in Cabinet because there were supervening steps that needed to be taking place, then the real process described by the witness with a content which was formulating budget proposals."[45] And further on the construction of the exemption, that "This is a particular exception that relates to issues that are to be considered by Cabinet. It's been construed as applying to those issues that are going to be in the immediate contemplation of the Cabinet. If it be the case there is some time. The issue doesn't relate to a budget proposal that is imminent or something that's immediately on the agenda from Cabinet or doesn't relate to something that Cabinet said there going to be considering in a particular form. It just may be that they're not caught by the exemption. But that's not to deny the practical effect of the exemption, which is it will work very hard once there are issues to be considered by the Cabinet. But when we are a couple of steps removed from that it may well be that the documents will not be exempt. But there's certainly no presumption in favour of exemption."[46]
5. For the reasons stated in the paragraphs that follow, I concluded the attempt to apply to this case various statements or findings made by the Tribunal in Environment Victoria Inc was misconceived.
6. Firstly, Mr Pound was correct in submitting that the decision in Environment Victoria Inc is distinguishable on its facts. The incoming government's policy on coal allocation and the Minister's position on this were not known. In short, the Tribunal found that the basis for establishing the requisite intention and expectation that the issues addressed by the Strategy were to be considered by the Cabinet had not been made out.
7. Secondly, whilst I accept Mr Jellis' submission that there was a difference between an election promise and a budget proposal, this difference did not place advice to the Treasurer on the fiscal impact of pre-election commitments and costings outside the ambit of protection given to documents, as long as, objectively speaking, the briefing met the requirements of the Cabinet documents exemption section.
8. Thirdly, whilst I accept that Document C was not a budget proposal or part of the formal budget process which Ms Skilbeck said commenced from February each year, the protection afforded by the section (having regard to its language and context) did not depend on it being so.
9. Fourthly, I accept, as Mr Pound did, that at the time the briefing was prepared the DTF could not have predicted with certainty that the pre-election commitments would be part of any later budget proposal and, if they were, in December 2014, the DTF could not have predicted with any certainty the form they would take as part of any later budget proposal.
10. In the present case, however, the evidence was that at the time the briefing was prepared the DTF and Ms Skilbeck's expectations were informed by past practice where the Treasurer had been briefed by the DTF on the fiscal impact of pre-election commitments in advance of the development of budget submissions.
11. Fifthly, I reject the submission that in this case the advice on pre-election commitments and costings was provided too far in advance of the budget process to have a relationship with issues to be considered by the Cabinet. The submission made reads into the provision a temporal constraint on the protection of documents relating to issues to be considered by the Cabinet. As long as the purpose is made out, any delay in those issues reaching the Cabinet cannot act retrospectively to extinguish the protection the document attracts at the time it is prepared.
12. Lastly, having read the decision in Thwaites, the observation by the Deputy President that nothing in the evidence suggested the document in question was prepared in immediate contemplation of a discussion in Cabinet, refers to the state of mind of the maker/s of the document. It has nothing to do with the time at which the issues will be placed on Cabinet's agenda or be considered by Cabinet.
13. The parties also made submissions on the application of the decision of Senior Member Proctor in 2012 in Fyfe.
14. In Fyfe the applicant sought access to post-election briefing documents (the Blue Book) prepared by the respondent before the 2010 State election for briefing a new government in the event that the Victorian Liberal/Nationals coalition won the election, as it eventually did.
15. The respondent relevantly claimed exemption under section 28(1)(ba) in respect to parts of the Blue Book, which was completed the day before the election. The evidence of the respondent's Deputy Secretary was that the primary audience had been the incoming Premier should the Coalition win the election and this had been discussed at senior levels in the Public Service before the Blue Book was created. He had understood during the development of the Blue Book that its content would be considered by the new Cabinet and that the Blue Book would be necessary for the Cabinet to be formed and to function efficiently. This witness could not, however, say how the Blue Book was in fact used as he said this was for the Premier to decide.
16. Another witness informed the Tribunal that the Blue Book was prepared with the expectation that all the material would go to the Premier and then to the Cabinet for discussion, although he too agreed that at the time, those preparing the Blue Book would "never know ultimately if Cabinet would discuss and implement issues".[47]
17. In concluding that the documents fitted squarely within the exemption the Senior Member relevantly explained that:[48]

38. While it was ultimately up to an incoming Premier to decide whether to in fact use the documents to brief a new Cabinet, the purpose at the time the documents were created was formed with the realistic expectation that the documents would be put to Cabinet to consider issues raised in them. They were not intended to be placed before Cabinet only for information purposes.

1. Whilst Mr Jellis acknowledged that the decision in Fyfe did not advance his case, he nevertheless sought to distinguish Fyfe on the basis that the purpose of the Blue Book was clear. Whereas in the present case, in Mr Jellis' words, there was: "some distance between it (the briefing paper) and the budget proposals in whatever form they might be that would ultimately be submitted to the expenditure review committee of the Cabinet".[49]
2. This and other submissions made by Mr Jellis drew attention to the meaning of the phrase "in relation to" in the context of the Act. Mr Jellis submitted the briefing issues lacked the degree of connection needed for the Tribunal to conclude that these issues would ("not might, not probably"[50]) go to the Cabinet.[51]
3. In the course of challenging the submission that some degree of certainty was necessary around the form in which the issues would go to the Cabinet, Mr Pound also addressed the meaning of the phrase "in relation to" in the context of the section.
4. This relational phrase has been said to denote "a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection depends upon context."[52]
5. Mr Pound relevantly noted: firstly, that the phrase is to be interpreted under the Act in the context of a Cabinet document exemption provision and, secondly, that one of the essential public interests protected by section 28 is the need to provide complete protection from release to all documents connected with the deliberations of the Cabinet. The latter includes protecting these documents from premature disclosure.
6. For the reasons so stated, I have accepted Mr Pound's submission that the phrase "in relation to" should not be afforded an overly restrictive construction.
7. Common sense tells us that the issues addressed in a briefing paper which was never intended to go to the Cabinet, are likely to undergo some degree of refinement in the process of preparing proposals for consideration by the Cabinet in due course. In my view, the Act does not require release of a briefing document merely because the issues the document addresses are subsequently refined or developed in some way before being deliberated upon by the Cabinet.
8. In the case at hand, the issues addressed by the briefing paper were the same as those contained in the budget proposals, notwithstanding the changes in nuance and detail to which Ms Skilbeck referred.

Submissions on the degree of certainty required that the issues will be considered by the Cabinet

1. As already mentioned, in my view, events occurring subsequent to completion of the briefing paper and submission on 22 December 2014 to the Treasurer should not and cannot act retrospectively to deprive Document C of the protection it might otherwise acquire at the time of its preparation.
2. Mr Pound submitted that to require a significant degree of certainty around both whether the issues and/or the form in which the issues went to the Cabinet would set the bar too high and render the provision unworkable. He submitted the threshold should be set no higher than the expectation that the issues would be considered by the Cabinet.
3. Mr Pound further submitted that the Tribunal might infer that Ms Skilbeck's expectation at the time the briefing document was prepared was both sound and reasonable, having regard to the evidence of later use to which the Summary Report of the progress of all of the pre-election commitments was put.
4. To repeat, as long as the issues meet the statutory requirements at the time of preparation of the document, it is not necessary to also prove that they were eventually considered by the Cabinet. That said, however, evidence that those issues were progressed and dealt with subsequently may be of some assistance in establishing that the claimed expectation at the time the briefing document was prepared was both sound and reasonable.
5. Each case must be decided on its facts. In this case, the evidence helps the Tribunal more readily accept Ms Skilbeck's evidence that she had expected the issues, that is to say the pre-election commitments and costings about which Document C advised the Treasurer, would be considered by the Cabinet.
6. Section 28(1)(ba) is undoubtedly concerned to protect the confidentiality of Cabinet deliberations. In my view, the construction of the phrase "to be considered" urged by Mr Jellis, was strained and contrary to the ordinary and natural meaning of the words used by Parliament, not to mention inimical to the purpose of this Cabinet documents provision in the Act.
7. In my view, nothing in the Act supports the contention that Parliament intended there be an assessment of the degree of certainty in the minds of departmental officials when preparing a briefing document that the issues on which the document advised a Minister would be considered by the Cabinet. The language employed and the meaning derived from the context in which the phrase "to be considered" was used do not require proof of some degree of certainty in the mind of those preparing the briefing that the issue on which the briefing is given will be considered by the Cabinet.
8. The test is an objective one. Departmental officials may claim that at the time of its preparation the sole purpose or a substantial purpose of the briefing was to brief a Minister in relation to issues to be considered by the Cabinet. And further claim that at the time their expectation was that the issues to which the briefing referred would be considered by the Cabinet. The real question is whether the expectation so claimed was at the time of preparation (objectively speaking) realistic given the surrounding circumstances.
9. If I am wrong in my understanding of the test, I have, nonetheless, accepted the accuracy of Mr Pound's submission that to require a significant degree of certainty that the issues will be considered by the Cabinet would render the provision unworkable. This submission draws on the decision in Fyfe which does not support an interpretation of the exemption provision that requires the degree of certainty asserted by the applicant.
10. Moreover, as Mr Pound also noted, in contrast to the present case where the briefing document was prepared after the election and dealt with issues Ms Skilbeck said she expected would go before the Cabinet, Fyfe had involved much greater uncertainty about whether the Cabinet would consider the issues in the briefing document_._[53]
11. On the evidence before me I find the sole or a substantial purpose of Document C was to brief the Treasurer in relation to issues (the pre-election commitments and costings contained in the LFS) to be considered by the Cabinet.
12. Accordingly, I propose to make orders affirming the decision of the DTF.

[1] Paragraph 5 of Ms Skilbeck's affidavit, Exhibit R1

[4] Re Ryan v Department of Infrastructure [2004] VCAT 2346; (2004) 22 VAR 226 at 234 [32]; VCAT 2346 [32]

[5] Hennessey v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 at [18]

[6] Ibid at [19], citing the Second Reading Speech to the Freedom of Information (Amendment) Bill 1993 extending the exemption to include s 28(1)(ba)

[7] Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39 [29]

[14] [2007] VSCA 11

[17] Re Thwaites v Department of Health and Community Services (unreported, AAT of Vic, Macnamara DP, 4 April 1996 at page 9)

[20] Re Batchelor and Department of Premier and Cabinet (1997/33203 & Ors) [1998] VICCAT 79 (29 January 1998)

[21] Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996) and applied in Fyfe v Department of Sustainability & Environment (General), [2012] VCAT 222, [30(f)]

[29] Re Binbaur and Department of Industry, Technology and Resources (Nos 1, 2 and 3) (1986) 1 VAR 279 at 286 and adopted in Re Ryan, [33]

[30] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, [47]

[31] Ryder v Booth [1985] VicRp 86; [1985] VR 869 at 877

[32] Carr v The State of Western Australia [2007] HCA 47, per Gleeson CJ [6]

[33] Ibid. [31]. See also the Second Reading Speech on the Freedom of Information (Amendment) Act, 7 May 1993,Mrs Wade Attorney General, Parliamentary Debates (LA) Vol 412, [1737]-[1739]

[42] Environment Victoria Inc [35]-[36]

[52] Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 155 FCR 357, 374 per French J [57].