Secretary, Department of Infrastructure v Asher [2007] VSCA 272

**1 I agree that the appeal should be dismissed for the reasons stated by Vincent JA.

2 I wish to add some observations as to the claim by the appellant that the quarterly asset performance reports ('the reports') were exempt pursuant to s 28(1)(d) of the Freedom of Information Act 1982 ('the Act') as documents 'disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet.'

3 As Vincent JA has said, the reports were not prepared for the purpose of submission for consideration by the Expenditure Review Committee ('the ERC'), but for the purpose of providing raw material which might be used in the preparation of another document that was to be submitted for consideration by the ERC. Consequently, the reports themselves did not reveal a subject matter considered by the ERC. That was only disclosed by witness statements made by the very persons concerned to suppress publication of the reports, who described in general terms the use made of the reports in compiling the submission to be considered by the ERC. Without those statements a member of the public would not know whether any of the material in any or which of the reports had been placed before the ERC.

4 I will assume for the sake of argument that a document need not disclose on its face that it was considered by Cabinet in order to be exempt under s 28(1)(d). The question remains whether the disclosure of a document placed before Cabinet involves the disclosure of a deliberation or decision of the Cabinet.

5 The submissions on behalf of the appellant proceeded upon the basis that the exemption was attracted to any document which disclosed a subject matter on which Cabinet deliberated. Indeed, in their outline of argument, counsel for the appellant submitted that an agenda for a Cabinet meeting would fall within s 28(1)(a) of the Act, which exempts 'the official record of any deliberation or decision of Cabinet.' In this case the reports could not disclose what, if anything, Cabinet thought of the matters canvassed in the reports or what use, if any, Cabinet made of any part of the reports. The question is whether the word 'deliberation' in s 28(1)(d) includes a topic on which Cabinet deliberates or is limited to the manner in which Cabinet deals with a topic. The appellant would have it that every document placed before the Cabinet is exempt.

6 The word 'deliberation' does not ordinarily connote the subject matter of a debate, but rather the debate itself. The principal definitions of the word in the Oxford English Dictionary are:**

1. 1. The action of deliberating, or weighing a theme in mind; careful consideration with a view to decision.
2. 2. The consideration and discussion of the reasons for and against a measure by a number of councillors (eg in a legislative assembly).

In my opinion the construction advanced by the appellant is strained. It takes the word beyond deliberations of Cabinet to the topic which produces Cabinet deliberations. The word is coupled with 'decision', that is, with an action taken by Cabinet with respect to a subject matter. Similarly, I think 'deliberation' refers to Cabinet's treatment of a subject matter.

**7 Further, I think that the appellant's construction is inconsistent with the object of the Act. Section 3 provides that the object of the Act is 'to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes.' Accordingly, '[I]t is proper to give to the relevant provisions of the Act a construction which would further, rather than hinder, free access to information.'[1] The exemptions are described in the section as those 'necessary for the protection of essential public interests'. I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing the views expressed by members of Cabinet as to a matter and the manner in which Cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest.

8 That is not to say that a document supplied to Cabinet for its consideration could never be exempt as disclosing a deliberation of Cabinet. It all depends upon the terms of the document. At one end of the spectrum, a document may reveal no more than that a statistic or description of an event was placed before Cabinet. At the other end, a document on its face may disclose that Cabinet required information of a particular type for the purpose of enabling Cabinet to determine whether a course of action was practicable or feasible or may advance an argument for a particular point of view.[2] The former would say nothing as to Cabinet's deliberations; the latter might say a great deal. In my view, in the present case the reports were in the former, rather than the latter, category. The reports revealed information about the performance and requirements of government departments, but said nothing about the deliberations of Cabinet.

9 Counsel for the appellant relied upon decisions concerned with claims of public interest immunity to prevent the production of documents. While there are decisions in this area dealing with the need to protect Cabinet's deliberations, the considerations which are relevant in applying the law relating to public interest immunity are not wholly analogous to those arising in the task of construing s 28(1)(d) of the Act. Public interest immunity involves wider considerations than arise in the application of s 28(1)(d). Public interest immunity is not absolute. The claim of immunity must be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant evidence.[3] In the case of freedom of information, the balance of competing interests has been struck by the Act. Documents in the possession of the government and government agencies are to be disclosed unless they are exempt. See s 13 of the Act.

10 In my view the decisions on public interest immunity relied upon by the appellant do not establish the proposition contended for by the appellant, namely, that the disclosure of the contents of a document placed before Cabinet reveals the deliberations of Cabinet.

11 In Commonwealth v Arcadia Holdings[4] the Full Court of the Supreme Court of Western Australia held that documents described in an affidavit of documents as 'Documents referring to matters which were considered by Cabinet, listed matters to be considered by Cabinet or preparatory documents' were protected by public interest immunity as records of Cabinet deliberations. The documents were discovered in an action against the Commonwealth, in which it was alleged that the Commonwealth formed an intention to prevent the importation into Australia of high volumes of second-hand motor vehicles, which rendered false representations said to have been made by a government minister. The Court held that the documents were records of deliberations of Cabinet, but only because 'they would only be relevant if the proposals contained in the documents were adopted or agreed to by the Cabinet or members of the Cabinet.'

12 In Commonwealth v Construction, Forestry, Mining and Energy Union[5], the Full Court of the Federal Court held that a letter from a minister to the Prime Minister seeking the latter's agreement to raise particular matters in Cabinet was protected by the public interest immunity. The letter was protected, not because it revealed a matter placed before Cabinet, but because it revealed the position taken by the minister in Cabinet. Their Honours said:**

Disclosure of the contents of a letter would, in our view, operate to reveal the nature of the matters considered by Cabinet and at least part of the Cabinet's deliberation of those matters. On the evidence it can reasonably be assumed, in the circumstances of this case, that the minister would have attended the meeting and put before Cabinet the position and arguments as set out in the letter. Disclosure of the contents of the letter would therefore disclose the position of the minister, the arguments he wished to advance, and the topic which in all probability was discussed at the meeting. Otherwise it is not possible to envisage why the letter would have been handed out to the Cabinet members at the Cabinet meeting. The position taken by the minister in Cabinet is part of the Cabinet's deliberation.

The reports the subject matter of the present case, on the other hand, could not disclose the position of any member of the ERC.

**13 In National Tertiary Education Industry Union v Commonwealth[6] Weinberg J held that a number of documents were protected by public interest immunity. Some of the documents were privileged because, like the letter considered in Commonwealth v Construction, Forestry, Mining and Energy Union, they disclosed the position to be taken by a minister at a Cabinet meeting. Other documents revealed material submitted to Cabinet by public servants.

14 The principal issue in the case was whether public interest immunity should yield to the public interest in the advancement of justice. Weinberg J determined that in this case it should not. He observed at one point, referring to all the documents, that 'Inspection of those documents would have the same tendency to reveal Cabinet deliberations as would inspection of Document 14.' Document 14 was a proposal for the reform of higher education to be put before Cabinet by the Minister for Education. His Honour's observation was not necessary to determine the question of immunity. An official from the Department of the Prime Minister and Cabinet, in an affidavit supporting the claim for privilege, did not describe a number of the documents as capable of disclosing the deliberations of Cabinet. Rather, the documents were said to be privileged because they revealed materials submitted to Cabinet. This claim was presumably intended to invoke the protection afforded to reports or submissions to Cabinet for the purpose of encouraging candour on the part of public officials in their communications with those responsible for making policy decisions.[7] That is quite different from the policy of protecting documents revealing the deliberations of Cabinet, which is justified in order that members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be**

made.[8] Accordingly, I would not conclude that his Honour held that a document revealing a topic to be considered by Cabinet necessarily disclosed the deliberations of Cabinet.

15 For the foregoing reasons I am of the opinion that the reports did not fall within the purview of s 28(1)(d) of the Act.

16 On 22 July 2005, the respondent applied to the Victorian Department of Infrastructure (DOI) for access to a number of documents -

With reference to the Department's Capital Subcommittee minutes dated Tuesday, 27 January 2004 [released under FOI on 18 June 2004] - the document described as 'Quarterly Performance Report' which is submitted to the Department of Treasury and Finance. This request is seeking all Quarterly Performance Reports submitted in the years 2004 and 2005.

17 Six folders of documents encompassed by this description were eventually identified as held by the Department. However, access to them was denied on the basis that they were exempt under s 28(1) of the Freedom on Information Act 1982 (Vic).[9]

18 The respondent successfully appealed to the Victorian Civil and Administrative Tribunal for a review of this decision and access was granted with some limited exceptions.[10] Before this Court, the appellant has contended that the Tribunal fell into error, in a number of respects, in holding that the documents were not exempt and seeks to have its orders set aside.

19 In September 2003, Guiseppe Monforte, the Director, Budget and Financial Management, Department of Treasury and Finance, notified other Departments, through a 'Budget Memorandum,' of the 'quarterly performance reporting and appropriation revenue invoicing requirements for 2003-04.' He stated in the memorandum that:

The departmental quarterly report provides the basis of the Department of Treasury and Finance (DTF):

(a) Recommendations to the Minister for Finance and Treasurer on the amount of appropriation revenue that could be certified and applied for each department in the quarter based on their reported output performance against targets.

(b) Reporting to the Expenditure Review Committee (ERC) and Cabinet on the Government's ownership interest in departments. This includes:

- implementation of key business strategies and initiatives;

- occupational health and safety (OH&S) performance;

- extent to which 2003-04 savings targets are being achieved;

- identification of budget pressures and emerging risks to future output, asset or financial performance.

As the departmental reports form the basis of advice to Cabinet, they must be marked Cabinet-in-Confidence.[11]

20 The reason for securing the reports was stated to be that:

The advice from departments forms the basis of a quarterly report to the Treasurer and ERC on major issues impacting on departmental performance. The report to the Treasurer aims to assist Government in making timely strategic decisions.

The Memorandum then set out a list of subjects which the reports were to cover. They were directed to include information and assessments concerning the respective department's view of significant emerging issues, major budget commitments, service delivery, output performance, asset investment performance and occupational health and safety performance.[12]

**21 The quarterly reports were required for two quite separate purposes, the first of which was to enable the Department to make recommendations to the Minister of Finance and the Treasurer. The second, however, has become the subject of consideration in this proceeding as the advice required from the departments was also intended to be used as the basis of a quarterly report by the Treasurer to the ERC on major issues impacting on departmental performance and risk assessment.[13]

22 The Treasurer's report to the ERC, presumably drawing upon what was perceived as significant of this purpose from the various departmental quarterly reports, would be prepared within the Department of Treasury and Finance and provided to the Treasurer with the view that, if approved, it would then be submitted for consideration by the ERC.

23 There is nothing in the Budget Memorandum that could be seen as raising the suggestion that any of the departmental 'advice' would itself reach Cabinet, although Mr Monforte asserted:**

As I sought to make clear in paragraph 3(e)[14] of the Budget Memorandum, DTF's purpose in requiring departments to prepare the asset investment reports per attachment B of the Budget Memorandum each quarter (and certain other documents) was for submission of those reports to ERC for its consideration, in accordance with previous directions of ERC.

However a little later in his witness statement he modified this position and made it clear that it was understood that his department would not simply act as a conduit for their transmission to the ERC:

I can verify that almost all of the contents of the disputed QAPR's[15] was included verbatim in the body of submissions to ERC prepared by DTF on behalf of the Minister for Finance. The only material in the disputed QAPR's which was not included in the ERC submissions in respect of the March 2004, June 2004, September 2004, December 2004 and March 2005 quarters was a graphical representation of what was being said in the disputed QAPR's; a summary of the information and opinion expressed in the disputed QAPR's; and (in respect of some but not all QAPR's) the details of milestones achieved since the last ERC submission and of recent visible project activity. In the interests of brevity, it was considered unnecessary to include repetition, by way of DOI's graphical and verbal summaries, of the information and opinion which DOI had provided under each of the headings as required by attachment B of the Budget Memorandum. It was also considered unnecessary to include 4 QAPR's (out of the total of one hundred and eighty QAPR's which constitute documents 1 to 5) because the projects had reached the date of practical completion by the date of the ERC submission. Any other textual or formatting differences picked up by me between the disputed QAPR's and the ERC submissions are of a minor and immaterial nature.

24 With respect to the last of the six reports:

In respect of the asset investment submission to ERC for the June 2005 quarter, DTF summarized rather than transposed the key information in the QAPR's prepared by DOI.

I observe that there was no restriction, had DTF chosen to do so, upon its capacity or right to adopt a similar process with respect to the other five reports, or having reached the conclusion that a deal of the information in them was not significant, omit to include it.

25 At the hearing of the application for the review of the decision refusing access to the documents, evidence was given by Mr Monforte to the effect that:

ERC, a committee of Cabinet, reviewed the asset investment performance of Government departments [and] gave directions on the information it required from departments for the purposes of its functions.

[He] issued [the] Budget Memorandum to inform departments of ERC's asset investment performance reporting requirements for the 2003-2004 financial year, and that memorandum included the changes specifically directed by ERC. ...

The information required by the Budget Memorandum was specifically requested by Cabinet and was not previously provided to DTF.

In 2004-2005, departments were required to continue to comply with the Budget Memorandum because ERC did not change its requirements on the information to be submitted to ERC for its consideration.

The reports prepared by each department for asset investments, ... were called 'Quarterly Asset Performance Reports' (QAPRs). The QAPRs prepared by individual departments were combined by DTF (together with DTF analysis and advice) into a whole-of-government asset investment performance submission, which was presented by the Minister for Finance to ERC for its consideration each quarter.

Almost all of the content of documents 1 to 5 was included verbatim in the body of submissions to ERC. That content was reformatted and edited to produce a 'seamless' document for ERC. The content of document 6 was summarised in the submission. (my emphasis)

**26 This evidence is entirely consistent with the statements in the Memorandum that the 'advice' received would be the 'basis' for a further and separate report.

27 Gail Moody, the Executive Director, Capital Planning and Review Division of the Department of Infrastructure, stated in her witness statement that:**

My duties as Executive Director, Capital Planning and Review Division included the preparation of the documents numbered 4, 5 and 6, known as 'Quarterly Asset Performance Reports' (QAPRs) which DOI was required to prepare by a memorandum issued by the Department of Treasury and Finance (DTF) titled 'Quarterly Performance Reporting Requirements for 2003-04' (the Budget Memorandum).

It was my understanding and expectation at the time of preparation of the QAPRs which comprise documents 4, 5 and 6 that those QAPRs were being prepared for the purpose of submission to ERC for consideration. They were sent by my Division to DTF for inclusion in a whole of government submission to ERC each quarter.

DTF sent DOI copies of those parts of the ERC submissions, being made by the Treasurer or Minister for Finance, which related to DOI. For the purposes of this appeal, I have obtained access to those copies of quarterly asset investment performance submissions to ERC for the relevant periods and from my examination of those copies. I can confirm that almost all of the content of the QAPRs comprising documents 1 to 5 were incorporated verbatim in the body of submissions to ERC. Where the content was not included verbatim it was included with changes of a minor nature (such as formatting; the omission of estimated dates of completion, or costs, of intermediate stages of some projects; the omission of a graphic to illustrate text; the omission of a summary; or editing changes of no material significance). In a few instances, the information in a QAPR was combined with the information regarding a related project to present a consolidated report on the larger project. Also, four QAPRs (out of a total of one hundred and eighty) were not included in the ERC submissions produced by DTF for reasons unknown to me.

The QAPRs comprising document 6 were not incorporated verbatim in the ERC submission but information from those QAPRs was used in the submission.

28 It is noteworthy that Ms Moody did not state specifically that it was her understanding that the separate reports were to be forwarded in the submission and that she also referred to the use of their 'content'. Nor did she express any surprise that changes were made and matters omitted. Her attention was clearly focused upon the communication to Mr Monforte's department of what was perceived to be the necessary information, so that a further decision could be made as to what would be included in the submission to the ERC.

**29 The Tribunal held, on 17 July 2006, that the six documents were not exempt under s 28(1)(b).

The respondent did not provide me with the relevant quarterly whole of government submissions made by DTF to the ERC, including the executive summaries, nor the relevant ERC agendas or minutes[16],

and therefore that no direct comparison could be made between the reports and the submission. It was held that -

Given the evidence of Ms Moody and Mr Monforte that at all times it was known and expected that the disputed documents were to be provided to DTF and that DTF would thereafter produce a whole of government submission to the ERC, I am not satisfied that at the time of preparation a substantial purpose of the preparation of the disputed documents was that the disputed documents, and not the whole of government submission, would be submitted for consideration by ERC. The fact that much of the data from the disputed documents found its way into the whole of government submissions does not alter my conclusion in this regard. I consider that the evidence before me establishes no more than that the disputed documents were commissioned by the DTF, in a format prescribed by the DTF's budget memorandum, for use by the DTF in preparing a quarterly whole of government submission to the ERC.

... I am not satisfied that at the time of preparation a substantial intention was that the disputed documents would be submitted to ERC. Even if I accept that this was a substantial intention of DOI, I am not satisfied in the circumstances of this case that such submission was submission for consideration by the ERC. Rather, I consider that the disputed documents were prepared substantially for the purpose of enabling DTF to prepare another document, the whole of government submission, which was to be considered by ERC.[17]

31 Secondly, with respect to the alternative contention that they were exempt under s 28(1)(c), it was found that -

I am not satisfied that the disputed documents are drafts of the relevant quarterly DTF submission to ERC, for a number of reasons. The documents were of different kinds, prepared by different agencies. The disputed documents were not characterised by Ms Moody as drafts of the DTF submission to ERC. They were not marked as such. On the contrary, the cover sheet of each of the folders of disputed documents refers to 'FINAL ERC Quarterly Reporting Requirement'. Unlike the draft report referred to in Re Ryan..., there was no evidence that DOI and DTF jointly considered the disputed documents nor that DOI then produced a final document to DTF. It was DTF which created a completely new document using some information or data from DOI's disputed documents.[18]

32 Thirdly, in relation to the possible application of s 28(1)(c), the Vice President held that -

I am not satisfied on the basis of this rather general evidence that the disclosure of the disputed documents would involve disclosure of what the ERC members discussed at the relevant quarterly ERC meetings. I consider that all that would be disclosed is the departmental data from DOI concerning projects which fell within the reporting criteria set down by DTF. Disclosure of the disputed documents would not reveal what the ERC had before it at the relevant meetings, as I have already found that on each occasion the ERC had before it a completely new document, prepared by the DTF using information supplied to it, inter alia, by DOI. Disclosure would therefore not involve disclosure of the whole of government submission, nor the executive summary accompanying it, nor the agenda for the relevant quarterly ERC meetings.[19]

33 On 8 September 2006, the appellant was granted leave to appeal against the decision; the issues raised for determination being:

Whether the proper construction of s 28(1)(b), (c) and (d) of the FoI Act required the Tribunal to find, given the uncontradicted evidence before the Tribunal and the Tribunal's findings of fact, that the documents were exempt from disclosure;

Whether it was open to the Tribunal, on the evidence before it and its own findings of fact, and on the proper construction of s 28(1) of the FoI Act, to find that:

(a) the documents were not exempt under s 28(1)(b) of the FoI Act,

(b) the documents were not exempt under s 28(1)(c), read with s 28(1)(b) of the FoI Act;

(c) the documents were not exempt under s 28(1)(d) of the FoI Act.

Whether the Tribunal failed to take into account logically probative evidence in making each of the findings identified in [the second paragraph] above.

(a) Exemption under s 28(1)(b) of the FoI Act

**35 Counsel for the appellant argued in support of the claim that the documents were exempt under s 28(1)(b), that a document prepared by an agency for the purpose of enabling another agency to prepare a 'whole of government' submission for consideration by Cabinet is encompassed by the provision as a 'document' - 'prepared for the purpose of submission for consideration by the Cabinet'.

36 It is clear enough from the evidence, as the Tribunal held with respect to each of the documents, that it was prepared in order to enable the creation of another and quite separate document and it was the latter that was to be submitted for Cabinet consideration. The initial reports were to be used by Mr Monforte's department in the preparation of the actual submission. They could have been incorporated in whole or part, or edited, recast, reformatted or reworded.

37 None of the documents in issue were directed to be prepared in the expectation that they would themselves necessarily be submitted to Cabinet. At most, they were to be included in or annexed to another document that was to provide the framework for possible Cabinet consideration of the progress, developments and issues described or detected. As it transpired, almost all of the content of five of the reports was set out 'verbatim', but reformatted and edited into a 'seamless' document to which was added DTF analysis and advice. It is reasonable to assume that it was this advice and analysis of the data and issues contained in the reports, that constituted the core of the 'whole of Government' submission and was contemplated would form the basis of their deliberations and, as Mr Monforte put it, 'assist Government in making timely decisions'.

38 The position can be seen to be quite different from that considered by the Court in Secretary, Department of Treasury and Finance v Dalla-Riva where a report, which was found to have been specifically prepared for submission to Cabinet, was not directly presented but used as the basis for a submission. As the terms of s 28(1)(b) make clear, it is the purpose for which the document was prepared that is crucial and not whether it is actually submitted or considered.

39 Morris P in Re Ryan and the Department of Infrastructure[20] directed attention, albeit in a somewhat different context, to another aspect of the ambit of s 28(1)(b). He indicated with apparent approach that:**

In 1984 Peter Bayne, in his book Freedom of Information ... referred to the equivalent provision then contained in section 34(1)(a) of the Commonwealth Act and commented:

But perhaps the most difficult question is whether a document 'was brought into existence for the purpose of submission for consideration by Cabinet' (my emphasis). The emphasised words will limit the range of documents within these exemptions, for they do not include documents which are created to assist in the preparation of a submission.[21]

**40 I agree. Bearing in mind that the Freedom of Information Act has been accepted as remedial legislation designed to assist in ensuring open and accountable government, I am unpersuaded that the words in s 28(1)(b) should be attributed with anything other than their ordinary meanings and consider that they were intended to confine exemption from disclosure to the particular documents which it was contemplated would be placed before Cabinet for their consideration. Preliminary or preparatory material, not constituting a draft or copy, would accordingly not be encompassed.[22]

41 Neither the terms in which the various bases for exception contained in s 28(1) are expressed nor the underlying policy of the maintenance of Cabinet confidentiality provides support for the inclusion of the documents here. All that can be said is that the departments were required to provide information, some of which could be expected to find its way into a final submission for Cabinet consideration.**

(b) Exemption under s 28(1)(c))of the FoI Act

**42 I do not consider that the Tribunal fell into error in deciding that the documents were not exempt under s 28(1)(c). This ground lacks any substance whatever in my view.

43 As I have earlier pointed out, in its Reasons for Decision the Tribunal rejected the contention that the documents constituted a draft of a document prepared for submission to Cabinet.

44 The documents under consideration were not and did not purport to be other than what they were - Quarterly Asset Performance Reports. They were not drafts of anything[23] and did not become so because information or passages in them were used in the creation of another document. It could no more be said that the transposition of passages into the DTF document rendered them drafts of it than the use of the passages above from the Tribunal's Reasons renders the document setting out those reasons a draft of this judgment.**

(c) Exemption under s 28(1)(d) of the FoI Act.

**45 This complaint in relation to the Tribunal decision was based upon the contention that, as a committee of Cabinet required the provision of particular kinds of information from Government Departments, the contents of the various reports that were prepared in response and which might in whole or part find their way into a submission that Cabinet might consider, would itself involve the disclosure of a deliberation or decision of Cabinet.

46 At the conclusion of the hearing, the Court indicated to counsel that we would be assisted by submissions with respect to the interpretation of s 28(1)(d) and each of the parties has provided written submissions.

47 It was pointed out on behalf of the appellant that the provision is couched in identical terms to s 34(1)(d) of the Freedom of Information Act 1982 (Cth) which has been considered by the Administrative Appeals Tribunal on three occasions -**

In Re Anderson and Department of Special Minister of State (No 2),[24] [where] Deputy President Hall decided that 'whether, in a particular case, disclosure of a document would involve the disclosure of a decision or deliberation of Cabinet is a question of fact to be decided in the light of all the circumstances';

In Re Toomer and Department of Agriculture, Fisheries and Forestry,[25] [where] Deputy President Forgie described the authorities dealing with public interest immunity for Cabinet deliberations and decisions as 'directly referable to the consideration of the same issues in the context of s 34(1)(d)'. The Deputy President said that 'the whole of the evidence, of which the documents are only part, must be examined to make [the] determination' whether the documents disclose deliberations or decisions of Cabinet; and expressed disagreement with the proposition that only documents created contemporaneously with, or subsequent to, active discussion and debate in Cabinet qualified for the exemption;

In Re McKinnon and Secretary, Department of Health and Ageing,[26] [where] Senior Member Beddoe considered documents generated for the purpose of providing input to the development of a Cabinet submission and co-ordination and consultation with the Department and others. The Senior Member decided that, 'where the documents contain information that was included in the final submission prepared for Cabinet, that material should be exempt under section 34(1)(d) as it is clear that it would disclose information considered by Cabinet and therefore it may disclose unpublished deliberations of Cabinet'.

**48 A similar approach has been adopted in the context of claims of public interest immunity from the production of documents for inspection,[27] and by VCAT when considering claims for exemption under s 28(1)(d).[28]

The exemption prescribed in s 28(1)(d) is available where disclosure of a document 'would involve disclosure of any deliberation or decision of the Cabinet'. The use of the word 'involve' should be seen as expanding, rather than narrowing, the reach of the exemption.

According to the Oxford English Dictionary, 'involve' is a transitive verb that means 'to include; to contain, imply' and 'to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence...'. It follows that the exemption should be available where a necessary consequence of the disclosure of a particular document would be the disclosure of any deliberation of the Cabinet. In the appellant's submission, that necessary consequence may be established by evidence that explains the significance of the document in question (as occurred, for example, in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union and National Tertiary Education Industry Union v Commonwealth of Australia.

**50 In their submissions, counsel for the respondent do not challenge the correctness of this general approach, but submit that, whilst the context is clearly relevant when considering the consequences of disclosure, the emphasis must be placed upon what the document itself would convey in the circumstances. Here, the only evidence that any of the information contained in the documents was before Cabinet at all was provided by Mr Monforte for the precise purpose of claiming the exemption and in a carefully and deliberately crafted statement designed to avoid any breach of Cabinet confidentiality.

51 There is, in my view, considerable force in the respondent's submissions in the circumstances. Notwithstanding Mr Monforte's evidence to the effect that a**

great deal of the information, some of it transposed verbatim to the final submission, was presented to the Cabinet committee, even at this stage it is not possible to identify what was put before the committee or to draw any inferences as to what may have been the subject of deliberation or decision. Mr Monforte's evidence was crucial in establishing that any of the contents of the reports was contained in the submission, and confined because he was concerned that he did not breach s 28(1) himself. There is, in this situation, simply nothing to support the contention that access to the reports would involve the disclosure of Cabinet deliberations or some decision made by them.

**52 Having had the opportunity to read the judgment of Buchanan JA in draft form, I would add that I agree with his observations concerning the operation of s 28(1)(d) in this matter.

53 None of the grounds of complaint, having been made out, it follows that this appeal should be dismissed.**

**54 I agree with Vincent JA that the quarterly asset performance reports are not exempt documents under s 28(1) (b), (c) or (d) and that the appeal should be dismissed.

55 As Vincent JA explains, the reports are not exempt under s 28(1)(b) of the Act as these particular documents had not been prepared for the purpose of their submission for consideration by the Cabinet. The fact that some information within them found its way into documents that were prepared for that purpose does not attract the exemption. I also agree that the reports were neither a copy or draft of a document prepared for that purpose nor did they contain extracts from such a document so as to fall within s 28(1)(c) of the Act.**

**56 The exemption contained in 28(1)(d) is designed to protect the process of uninhibited debate and discussion amongst members of Cabinet while at the same time maintaining the principle of collective responsibility for any decision which is made.[29] I agree for the reasons given by Vincent JA and Buchanan JA that the disclosure of the documents would not involve the disclosure of any deliberation or decision of the Cabinet.

57 Each of the reports consisted primarily of information. There was nothing in those documents that gave rise to the inference that the information contained within them had been placed before Cabinet or that any of it had been the subject of Cabinet consideration. That is to say, there was nothing on the face of the documents which would permit the conclusion that their disclosure would involve disclosure of any 'deliberation' or 'decision' of the Cabinet.

58 I agree with Buchanan JA that when one has regard to the meaning of the term 'deliberation' and the object of the Act as contained in s 3, one cannot accept the appellant's submission that it is sufficient to attract the exemption that the document discloses the subject matter upon which Cabinet may have deliberated. The deliberative process involves the weighing up or evaluating of the competing arguments or considerations that may have a bearing upon Cabinet's course of action - its thinking processes[30] - with a view to the making of a decision. It encompasses more than mere receipt of information in the Cabinet room for digestion by Cabinet ministers then or later.[31]

59 Neither the agenda for a Cabinet meeting nor a document which merely contains information on a subject which may have been before Cabinet enables the conclusion that there was any Cabinet deliberation as to that matter or if there was, what the deliberations were with respect to such matter.[32]

60 Although the appellant did not concede that the quarterly asset performance reports did not on their face disclose Cabinet deliberations, counsel was driven to rely upon extrinsic evidence in an attempt to establish that disclosure of the documents would involve disclosure of such deliberations. It relied upon extrinsic evidence that the Expenditure Review Committee (ERC) had directed that it be provided with the information contained in the documents and that very substantial portions of the information from the reports was transposed to documents which were submitted to the ERC. That evidence also dealt with the purpose for which the reports were brought into existence and included the assertion that the ERC had discussed the content of the documents placed before them. The extrinsic evidence also contained the expression of the opinion that the disclosure of the reports would involve disclosure of the ERC's deliberation. The respondent has contested the relevance of some of these matters.[33]

61 The appellant cited a number of cases in its supplementary submission in support of the contention that each aspect of the extrinsic evidence could be received by the Tribunal[34] but the Court did not hear full argument as to whether there were limitations upon the extrinsic evidence that could be received. Whatever be the permissible scope and content of the extrinsic evidence that may be called, I agree with Vincent JA that primary emphasis must be placed upon the content of the document in determining the consequences of its disclosure. Assuming without deciding that the entirety of the extrinsic evidence was properly before the Tribunal, I agree with Vincent JA that such evidence, considered in conjunction with the content of the reports did not enable any conclusion to be drawn as to whether the disclosure of their content would involve the disclosure of Cabinet deliberations.**

[1] Victorian Public Service Board v Wright (1986) 160 CLR 143 at 153 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ).

[2] Cf Re Smith and Department of Environment and Sustainability [2006] VCAT 1228.

[3] See Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

[4] Full Court of the Supreme Court of Western Australia, 16 May 1997.

[5] [2000] FCA 453; (2000) 98 FCR 31.

[6] [2001] FCA 610; (2001) 111 FCR 583.

[7] See Commonwealth v Northern Land Council, above at 614-5.

[8] The dichotomy is reflected in the contrast between paragraphs (b) and (d) with s 28(1) of the Act.

(a) the official record of any deliberation or decision of the Cabinet;

(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;

(ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered 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

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

[10] A claim was made under s 30(1) of the Act that some of the documents were exempt on the basis that their disclosure -

'(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

'any text inserted by DOI in the commentary section of the covering summary and in respect of any text inserted by DOI in Parts 2 and 3 of the templates.' (Asher v Department of Infrastructure [2006] VCAT 1372, [56].)

The Tribunal decision on this aspect has not been the subject of controversy in the present proceeding and is mentioned only for completeness.

[11] This endorsement, although useful in determining the purpose for which the various reports were being secured, cannot be regarded as determinative of the question whether the documents were exempt under the Act.

[12] Templates for the various elements of the reports were attached to the Memorandum.

[13] Buchanan JA in Secretary, Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 without hearing full argument on the point stated that he was inclined to think that 'the purpose identified in the relevant paragraph of s 28(1) may be the dominant purpose or one of a number of significantly contributing purposes.' The issue was not raised in the present proceedings, but I share his Honour's view.

'Asset Investment Reporting: In August 2003, ERC endorsed changes to the reporting requirements for asset investment projects. The changes were aimed at improving monitoring of asset investment delivery and, ultimately (through earlier identification of project risks and associated mitigation strategies) facilitating more timely corrective action to ensure projects remain on schedule and on budget. It also aims to focus reporting efforts onto major and high-risk projects.

Departments will have to make a risk assessment (high/medium/low) for all projects each quarter. The result of the risk assessment will determine if reporting is required and if so the level of reporting required (see Attachment B for further details).'

Whatever may have been the intention of Mr Monforte, it certainly does not emerge from this paragraph or Attachment B that the reports themselves would be sent to the ERC.

[15] Quarterly Asset Performance Reports.

[16] Asher v Department of Infrastructure [2006] VCAT 1375, [34].

[20] [2004] VCAT 2346; (2004) 22 VAR 226.

[22] I note that the Court in Dalla-Riva distinguished between the 'report itself' and a number of 'interconnected documents' which included 'drafts and related' documents.

[23] The Macquarie Dictionary (Federation ed, 2001), defines a 'draft' as 'a first or preliminary form of any writing, subject to revision and copying,' while The Oxford English Dictionary (2nd ed, 1989) defines it as 'a preliminary sketch or rough form of a writing document, from which the final or fair copy is made.'

[24] (1986) 11 ALN 239.

[25] [2003] AATA 1301; (2003) 78 ALD 645.

[26] [2004] AATA 1126.

[27] See Commonwealth v Arcadia Holdings, Full Court of the Supreme Court of Western Australia (Appeal Ful 12 of 1997), 16 May 1997; Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2000] FCA 453; (2000) 98 FCR 31; National Tertiary Education Industry Union v Commonwealth of Australia [2001] FCA 610; (2001) 111 FCR 583.

[28] See Re Mildenhall and Department of Premier and Cabinet (No 1) (1995) 8 VAR 284; Re Wilson and Department of Premier and Cabinet [2001] VCAT 663; (2001) 16 VAR 455; Re Asher and Department of Development [2002] VCAT 609; (2002) 19 VAR 215; Re Smith and Department of Environment and Sustainability [2006] VCAT 1228.

[29] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 615-6 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

[30] Re Waterford and the Department of the Treasury (No 2) [1984] AATA 67; (1984) 1 AAR 1.

[31] Re Birrell and Department of the Premier and Cabinet (1986) 1 VAR 230.

[32] Re Porter, MP and Department of Community Services and Health No A87/24 AAT No 4207 Freedom of Information [9]; (1988) 8 AAR 335.

[33] The respondent in her supplementary submission has contended that parts of the extrinsic evidence involving the expression of opinion about whether the disclosure of the documents would involve disclosure of the deliberations of the Cabinet were irrelevant as they did not bear upon the facts which the Tribunal would have to consider in reviewing the decision made refusing disclosure.

[34] Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; (2003) 78 ALD 645, [96]; Re Ryan and Department of Infrastructure [2004] VCAT 2346; (2004) 22 VAR 226, [45]; Re McKinnon and Secretary, Department of Health and Aging [2004] AATA 1126, [83], [86]; Re Mildenhall and Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 291, 296; Re Wilson and Department of Premier and Cabinet [2001] VCAT 663; (2001) 16 VAR 455, [15], [41]; Re Asher and Department of Development [2002] VCAT 609; (2002) 19 VAR 215, [28]; Re Smith and Department of Environment and Sustainability [2006] VCAT 1228, [22].