1. Under the Charter, in considering this application I must consider any relevant human right. Mr Smeaton did not raise the Charter. In my opinion, in this proceeding, the Charter does not apply as no right appears engaged.

1. I view the documents in question as exempt under section 30.
2. With reference to section 30(1), disclosing the documents would clearly disclose matter in the nature of opinion, advice and recommendation prepared officers in the nature of consultation and deliberation that has taken place between officers in the course of and for the purpose of, the deliberative processes involved in the functions of an agency (WorkCover).
3. With reference to section 30(2), in my view the release of the minutes would be contrary to the public interest. I base my decision on Mr Caldera's evidence, set out in part above, with reference to the Administrative Appeals Tribunal of Victoria (the AAT) and VCAT's previous FOI decisions concerning audit processes, in the context of Section 30.
4. In Victorian administrative Law, volume 2, The Law book Company Limited, (FOI.30.360), J. Pizer cites four relevant decisions. I have not discovered other directly relevant decisions.
5. Prescott v Auditor General of Victoria (1987) 2 VAR 93 concerned access to documents relating to the Auditor General conducting audits of the Victorian Tourism Commission and the Museum of Chinese Australian History. The AAT largely agreed with the Auditor General, the documents should not be released.
6. At page 96, Galvin PM said , personal involvement of the applicant in the documents will mitigate in favour of disclosure, unacceptable motive of the applicant will work against access. I comment that, as in Prescott, in this proceeding there is no unacceptable motive.
7. At page 97, Galvin PM said,

I find no difficulty in agreeing with the contention that the success of the audit process is a matter of vital importance to the public and further that its importance will more often than not outweigh the interest of the public in having access to particular documents forming part of an audit.

1. Galvin PM released what he described as four innocuous documents. However, at page 100 he said,

By adopting this view of these four items I am not to be taken as expressing a view that innocuousness itself necessarily precludes exempt status. The Act establishes no such principle. It is a factor to be taken into account in balancing competing public interests.

1. In Rabel v Gas and Fuel Corporation (Vic) (1989) 3 VAR 334, an employee of the Gas and Fuel Company of Victoria, Mr Rabel, had been interviewed in the course of an audit, which did not relate to his employment. Following his resignation, he sought access to documents relating to his employment. Notes of the interview were released, other documents relating generally to his employment, being exempted. Mr Rabel claimed the documents related to his suspension from employment. The AAT agreed the documents should not be released.
2. Riskella DP said at page 341,

I have no difficulty accepting, as a general proposition, that the internal audit process ought to be protected so that its efficiency is not reduced and thereby the efficiency of the respondent is monitored. By its very nature the audit process is one which must involve confidentiality of methods and of opinions. ...

The over-riding public interest in this case is in the protection of the efficiency and viability of the internal audit process which, in turn, allows the respondent to deliberate and make decisions which will result in the optimum efficiency of the respondent agency. Consequently the respondent has met the test pronounced by Lazarus J in Penhalluriack v Department of Labour and Industry [19 December 1993, unreported] at 33,

In every case sought to be brought within section 30 very real onus would lie upon the agency ... to satisfy the court that disclosure would be detrimental to the public interest.

1. In Lapidos v Auditor General of Victoria (1989) 3 VAR 343, Mr Lapidos sought access to documents relating to the audit of the Prison Welfare Account of the Ararat Prison, believing there were irregularities in its management. The parts of the documents relating to the audit, not being purely factual material, were not released.
2. At Page 346, Riskella DP said Document 15 was described as a response to the audit findings in respect of the Ararat Prison channelled through the Treasurer and as being deliberations taken into account by the Auditor-General before submitting his report to Parliament.
3. At page 350 she said,

It would require a formidable public interest to outweigh the public interest in preserving and protecting the deliberative processes of the Auditor-General's Department.

1. In Kotsiras v Department of Premier and Cabinet [2003] VCAT 472, an Opposition Member of Parliament sought review the decision of DPC to refuse access to certain documents following his request for "copies of all conclusive written advice reports/briefs prepared by KPMG and/or KPMG Consulting and/or Price Waterhouse Coopers for the Department of Premier and Cabinet since 1 July 2000 [up until 18 January 2002]". These included reports from Price Waterhouse Coopers to the DPC audit committee. VCAT did not release them, relying on section 30.
2. At paragraph 11, Megay SM summarised the relevant law,

Section 30 of the Act requires consideration of wh ether or not disclosure of the relevant matter would or would not be contrary to the public interest. The most quoted authority of the requirements of this sub-section is the one formulated by Davies J. presiding over the Commonwealth Administrative Tribunal in Howard v The Treasurer of the Commonwealth of Australia (1985) 3 CLR 169,178. The formulation is as follows:

1.The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.

2.Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest.

3.Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.

4.Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest.

5.Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.

In recent years the principles enunciated by His Honour in the third paragraph have not found favour being supplanted by the more contemporary acknowledgment that senior public servants are a robust group of individuals with little or no regard for any opprobrium that might accompany the provision of frank and fearless advice. In the absence of any evidence that disclosure has led to any diminution in frankness and candour such a consideration no longer attracts great endorsement. ...

1. With reference to evidence given at hearing, Megay SM said, at paragraph 16,

The role of the audit committee is to co-ordinate the activities of management, the internal audit process and the role of the Auditor General and to assist the department and the Minister properly to discharge their responsibilities for financial reporting. The committee is required to be objective and independent and because the nature of its role its members are required to have a detailed understanding of the audit process.

I have formed the view that disclosure of periodic internal audit reports containing recommendations that may or may not have been acted upon and that disclose systemic or other weaknesses that may or may not have been remedied, can only lead to confusion, unnecessary debate and speculation in circumstances where full reports from the Auditor General are available annually and satisfy the need for public accountability and satisfy the need to ensure proper adherence to accounting, monitoring and performance standards. This is particularly so where there is a continuous audit process undertaken in a climate of change in a fluctuating workplace.

1. Finally, with reference generally to the factors relevant to the public interest requirement generally, I note the AAT's decision in Hulls v Victorian Casino and Gaming Authority (1998) 12 VAR 483. Pizer (at FOI.30.200) summarises the identified factors as,
   • the right of every person to obtain access to documents as provided by s.13 of the FOI Act
   • the degree of sensitivity of the issues involved in the consideration;
   • the stage of the policy development process at which the communication was made;
   • whether the disclosure would be likely to inhibit frankness and candour in the making of communications;
   • whether disclosure would lead to confusion or unnecessary debate having regard to possibilities discussed;
   • disclosure of documents which give merely a part explanation rather than complete explanation for the taking of a particular decision;
   • the likelihood that disclosure of the documents would inhibit the independence of officers or the making of proper and detailed research and submissions by them;
   • the likelihood that disclosure would create mischief in one way or another such as a risk of mischievous interpretation; and
   • the significance of the document eg whether it is or is not merely a draft document.
2. None of the decided cases precisely concern the question of minutes of an audit committee such as the ARMC. However, the general thrust of the AAT's and VCAT's decisions is clear. Releasing documents concerning the audit process is contrary to the public interest. I agree with the above quoted observations of the AAT and VCAT about the public interest in protecting the integrity of the audit process, including where appropriate (as I see as the case here) protecting the confidentiality of the process.
3. I am persuaded that the ARMC operates with a high degree of confidentiality. I accept Mr Caldera's evidence on the point and observe that the committee regards its proceedings as confidential, including going to the length of conducting a substantial proportion of its deliberations with respect to the Smeatons' on an "in-camera" basis.
4. While I agree with Galvin PM's view in Prescott, that personal involvement of the applicant in the documents will mitigate in favour of disclosure, in this matter, in my view the other factors outweigh that factor.
5. With reference to the factors set out in Hulls:
   • in terms of the stage of the policy development process at which the communication was made, the ARMC is an arena for policy development, not final decision;
   • given that policy development role, disclosure could well lead to confusion or unnecessary debate; and
   • disclosure of documents would give merely a part explanation rather than complete explanation for the taking of particular decisions (by those other than the ARMC).
6. Given that Mr Caldera gave evidence that disclosure would not inhibit the ARMC in doing its job, I have placed no reliance on whether the disclosure would be likely to inhibit frankness and candour in the making of communications.

1. I do not see it as practicable to under section 25 of the FOI Act to produce a redacted version of the documents.

1. Turning to the public interest override, the High Court of Australia has ruled decision-makers must be satisfied to a high threshold that the public interest necessitates release of the document. In Osland v Secretary to the Department of Justice [2010] HCA 24, French CJ, Gummow and Bell JJ. said at paragraph 14,

It must be accepted that the word "requires" which appears in section 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest.

1. The Court said the high threshold existed (at para 48) where,

The nature of the differences between the advices, throwing up opinions about the fairness and authority of the criminal justice system, the circumstances of Mrs Osland 's situation, and asserted inadequacies in the law in relation to chronic domestic violence, was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents. It was, at the very least, arguable, in the circumstances of the case, that the high-threshold public interest standard was met and that the public interest required disclosure of the contending, essentially normative propositions which the Attorney-General had before him when he recommended that Mrs Osland 's petition be denied.

1. On the evidence before me, I do not accept the public interest requires the release of the documents.

[1] The lettering on the letter was as shown.