(i) The diary relates to appointments made in Mr Kapel's role as Chief of Staff to the Premier;

(ii) The diary was used by Mr Kapel to manage his time in performing his duties as Chief of Staff by recording his intentions as to future activities, but did not record whether the Chief of Staff in fact used his time as recorded;[2]

(iii) The diary was maintained in electronic form;

(iv) Mr Kapel or Ms Carney made all entries in the diary;

(v) The only persons with control of and access to the diary were Mr Kapel and Ms Carney; the diary was password protected; and

(vi) The diary was never provided to any department or other such public service entity or to any public servant.

1. In oral evidence, Mr Nutt confirmed that the duties and functions of a Ministerial adviser listed in paragraph 11 of his statement are still broadly applicable; and his particular duties and responsibilities are listed under paragraph 38. He further clarified these duties as follows:
   • (a) In relation to major public policy matters, he may become involved in research, evaluation and preparation of memoranda for the Premier;
   • (b) The range of matters in which he may give advice to the Minister encompass the whole of Government and may relate to:

(iii) Parliamentary management; and

(iv) Public policy across a number of areas, such as education; transport etc.

(c) He will deal with a range of stakeholders, both with and without the Premier; and both with and without public servants;

(d) He will assist the Premier by attending to many issues on his behalf, in accordance with his instructions, in the development of responses to issues or management of issues or conduct of affairs;

(e) He will interact with public servants at a senior level, both with and without the Premier, often within the Premier's private office;

(f) He will deal with all range of external contacts encompassing: parliamentary colleagues, unions, community, business and ethnic parties and organisations, etc;

(g) All of his dealings are within the context of a framework set by Government and in accordance with the instructions of the Premier;

(h) Parliamentary duties include dealing with questions to and speeches for the Premier; and all interactions between the Premier and other Parliamentary participants;

(i) As Chief of Staff he will generally supervise and manage responses to the very large volume of correspondence received by the OTP, but he will sometimes deal with it personally;

(j) He will deal with the media, as required, including input into a press release which deals with significant matters;

(k) Interactions with public servants and stakeholders encompass meetings, correspondence and telephone calls;

(l) His day to day activities encompass a range of capacities and different aspects of Government: Parliamentary, political and administrative functions; but he does not deal with these in a segmented fashion but rather as an 'integrated holistic role';

(m) When Mr Kapel was Chief of Staff, Mr Nutt dealt with him extensively while he was in the Cabinet office and believes that Mr Kapel approached his role in a similar manner to that which he described;

(n) He keeps one electronic diary in which he records appointments noting the time, date, place and usually the main parties and usually the expected duration. He will occasionally record personal information. He was not familiar with the details of the way Mr Kapel recorded information;

(o) He uses his diary as a prompt rather than as a record; and where changes are made during the day, such as urgent meetings, or where meetings have been cancelled, this may not be recorded in the diary;

(p) He does not use his diary to note matters or detail of matters discussed at meetings; and

(q) He agreed that he would provide access to the Premier to his diary if requested and presumed that Mr Kapel would have done the same.

23 Mr Nutt confirmed that all freedom of information requests made to the OTP are handled by a senior FOI Officer, who is an adviser. The FOI officer will be either, appointed under the PA Act or, seconded from the public service.

1. Matters will be referred by the Department to the OTP, where they should properly be dealt with within the OTP. FOI requests which relate to documents in the possession of the Department may also be referred to the OTP for noting, within the FOI regime, in which case they may be drawn to the attention of the Chief of Staff, who in turn may alert the Premier about such matters prior to the request being processed by the Department.
2. Mr Nutt would not describe there to be any overlap of functions between the OTP and the Department. However, one aspect of the OTP's role is to interact with Departmental officers. In the case of Parliamentary questions on notice, the Department will generally prepare material for consideration by the Premier. The Chief of Staff may also provide advice for consideration by the Premier.

1. Section 3(1) of the FOI Act sets out its objects as follows:

The object of this 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 by -

(a) making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

1. Accordingly, it is plain that Parliament intended to give members of the public access to information held by the Government and other public bodies; and that the legislation be interpreted so as to further this objective. A member of the public therefore has a right of access to information, unless the FOI Act expressly or by necessary implication, provides otherwise.
2. Respondent's Counsel highlighted certain principles of statutory interpretation, for the purpose of this Application. In particular:
   • (a) Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) provides that:

In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b) The High Court has recognised that the long title of an Act may assist in both identifying the purpose of an Act, as well as giving meaning to provisions;[3]

(c) The long title of the FOI Act is:

An Act to give the Members of Public Rights of Access to Official Documents of the Government of Victoria and of its Agencies and for other purposes.[4]

(d) The purpose of s 13(b) of the FOI Act is to provide access to 'an Official of a Minister', as opposed to all documents; and

(e) The Tribunal must construe the text, context and purpose of the relevant legislation. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ stated at 381-382:

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

1. I will be guided by these and other relevant principles.

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to -

(a) a document of an agency, other than an exempt document; or

(b) an Official document of a Minister, other than an exempt document.

1. The FOI Act therefore identifies two categories of documents over which every person has a legally enforceable right to obtain access, subject to any exemptions.
2. The term 'exempt document' is defined in s 5(1) and means:

(a) a document which, by virtue of a provision of Part IV, is an exempt document; or

(b) an Official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a department.

1. Hence, a document must fall within the meaning of either a 'document of an agency' or an 'Official document of a Minister' to invoke s 13 of the FOI Act. Once a document qualifies in either respect, it will then be relevant to enquire whether the document falls within the meaning of an 'exempt document'.
2. Section 25 of the FOI Act provides to the effect that where a document contains some exempt material then, where practicable, access shall be granted to a copy of the document with such exempt material deleted.

Document of an agency or document of the agency means a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency.

1. Section 5(1) of the FOI Act defines 'agency' thus:

means a department, council or a prescribed authority.

1. It is common ground that the Office of the Premier is neither a department, nor a council, nor a prescribed authority.[5] Accordingly, the Document is not a 'document of an agency.'

Official document of a Minister or Official document of the Minister means a document in the possession of a Minister, or in the possession of the Minister concerned, as the case requires, that relates to the affairs of an agency, and, for the purposes of this interpretation, a Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access the document and the document is not a document of an agency ...

1. Accordingly, the term 'Official document of a Minister' embodies two components or limbs. The relevant document must be:
   • (a) in the possession of a/the Minister; and
   • (b) relate to the affairs of an agency.
2. Before dealing with each of these limbs, I note that the Respondent sought to rely upon the word 'Official' in the expression 'Official document' as denoting documents of a specific type, namely those that have the character of being properly authorised in some way, by a Minister. No authority was cited for this interpretation and I could find none, either in the case law or in the relevant Second Reading Speech[6] or Explanatory Memorandum for the FOI Bill.[7]
3. Section 13(a) refers to 'document of an agency'; in contrast to s 13(b) which refers to 'Official document of a Minister.' As already indicated, the later expression embodies two components: 'possession' (actual or deemed) by the Minister; and 'relates to the affairs of an agency'. When both components are satisfied we have 'an Official document of a Minister'. There is no notion of explicit authorisation of the document; and no requirement that a Minister be involved in the creation or maintenance of the document.

1. The Respondent advanced a construction of the first limb which relied upon the Minister being in possession of a document in a Ministerial capacity or 'qua Minister'. The Respondent further submitted that the second limb, 'and relates to the affairs of an agency,' must then operate as a limiting factor, effectively creating a sub set of documents which constitute an Official document of the Minister. In my view, such distinction is illusory and relies upon a somewhat tortured and certainly unnecessary interpretation of the first limb.
2. In my view, the Applicant correctly described the intended operation of the above definition. The first limb of the definition clearly relates to 'possession' or deemed possession, by a person who holds the position of a Minister of the Crown. The second limb relates to the capacity in which the relevant document comes into the possession of a Minister. Furthermore, in my view, earlier decisions of the Tribunal are entirely consistent with this approach to the definition of 'Official document of a Minister.[8]
3. The Respondent submitted to the effect that 'Minister', within the FOI Act, does not extend to Ministerial staff. Accordingly, a document created by a Chief of Staff for his own purposes cannot constitute an 'Official document of a Minister' as any possession or deemed possession (by the Minister) did not arise in the context of the Minister exercising Ministerial functions. In my view, this approach is also flawed.
4. Whether a document is or becomes an 'Official document of a Minister', does not depend upon who created the document in the first instance or whether the document ever falls into the possession of an agency. Once a document is in, or deemed to be in, the possession of a Minister, the question arises as to in what capacity the Minister possesses such document.
5. In Re Schubert v Department of Premier and Cabinet,[9] Senior Member Megay, when considering the definition of 'Official document of a Minister' in s 5(1) of the FOI Act, noted that:

Over the years there has been developed the concept of constructive possession, an interpretation more in keeping with the objects of the legislation and its beneficial character than might apply elsewhere...

This notion of the wider interpretation is to be found in an early case in this Tribunal, Re Guide Dog Owners and Friends Association and Northern Thanet Pty Ltd and Commissioner for Corporate Affairs (1988) 2 VAR 405. At 408, Judge Jones stated that: "in my view, having regard to the scheme and objects of the Act, possession embraces legal or constructive possession; that is a right and power to deal with the document in question. It is not confined to actual or physical possession. Such a construction is, in my view, consistent with decisions of the Tribunal where it has regarded documents in the control of an agency as being documents of the agency".

1. I endorse these comments and further note that such broad construction is consistent with the further qualification contained in the above definition:

...a Minister shall be deemed to be in possession of a document that has passed from his possession if he is entitled to access to the document and the document is not a document of an agency.

1. Accordingly, it follows for the purpose of this Application, that the Premier will be deemed by s 5(1) to be in possession of the Document if he:
   • (a) is entitled to access to the document; and
   • (b) the Document is not a 'document of an agency' as defined by s 5(1) of the Act.

1. Whether a Minister is entitled to access a document is ultimately a question of fact, to be determined by the Tribunal on a case by case basis. The relevant circumstances relied upon by the Applicant were as follows:
   • (a) The Premier's and Mr Kapel's respective roles within the Office - that is Minister and Ministerial adviser;
   • (b) Mr Kapel created the diary in the performance of his duties within the Office;
   • (c) Statements in the witness statement of Mr Tony Nutt, filed by the Respondent, that:

...ministerial staff ... must only act in accordance with the instructions of their Minister or the Premier, as the case may be;[10] and

The purposes and function of the Document was to assist Mr Kapel to manage his time in performing his duties as Chief of Staff ...[11]

(d) Mr Nutt agreed under cross-examination that the Premier was entitled to access his diary and he assumed that the same situation would have pertained between the Premier and Mr Kapel's diary.

1. In my view, by reason of the nature, content and purpose of the diary, the Premier was entitled to access the diary and any part of it, and it was not contested otherwise.

1. The affairs of an agency include anything that could be considered the business of government or the exercise by a Minister of his or her Ministerial functions.
2. The Applicant submitted that the phrase 'relates to the affairs of an agency' should be construed broadly, so as to mean 'relates in any way to any of the affairs of any agency'. I agree.
3. Ministerial capacity and all that relates to that role, are synonymous with the affairs of an agency. While there may be specific statutory discretions vested in a Minister, it is only through a relevant agency that Ministerial functions, duties or other statutory discretions, can be performed. It is only for the purpose of the second limb that one has regard to definitions of Minister[12] and relevant Minister.[13]
4. It should be noted at this point that 'relates to the affairs of an agency' in relation to a particular document, is not limited to an agency within the relevant Minister's area of responsibility, but extends to any agency.
5. Davis v Office of the Premier (General)[14] concerned an application to the OTP (as well as all other Ministerial offices) for release of media plans. The request was denied on the basis that the documents were exempt. Before the Tribunal, the respondent claimed that the documents contained material of a political nature and were not Official documents of a Minister or alternatively did not relate to the affairs of an agency or a department.[15]
6. The OTP employed 22 media advisers who were each allocated to a Ministerial Portfolio, for which they prepared a weekly draft media plan. From these were prepared a master media plan by the Head of Communications and Principal Adviser Media, in the OTP.

The master media plan would set out the particular media focus or engagements of the Premier and each Minister each week...

Neither the individual media plans nor the master media plans were circulated or distributed outside the Office of the Premier.[16]

1. Her Honour Judge Hampel Vice President, considered the phrase 'relates to the affairs of an agency' in s 5(1) of the FOI Act and concluded that the evidence in that case made it clear that:

...there was a considerable overlap between the business of government and the promotion of the political image of the government in the community.[17]

1. Her Honour accepted that the documents were not documents of an agency, as they were prepared by Ministerial Advisers within the OTP and remained in their possession.
2. Her Honour further accepted that the documents were in the possession, or deemed possession, of the Minister, being provided to Ministers each week for consideration in Cabinet meetings.
3. In the Wilson case and Re Said and John Dawkins MP,[18] the tribunals distinguished between documents held by a Minister, qua Minister, and documents held in a private capacity[19] or in the Minister's capacity as a member of a political party, or a local member.[20] However, as Her Honour Judge Hampel identified in the Davis case, there may be documents which are in the capacity of a Minister, qua Minister, which serve multiple purposes.
4. Her Honour noted that one of the documents sought in the Davis case:

...included matters relevant to the Minister's activities as a local member, and member of a political party. It also included matters relevant to the exercise of his Ministerial functions as Minister for Planning ...[21]

If any final plans contain like matters, even if sought to be addressed in a manner designed to 'optimise political opportunities for the government' and 'promote the political image of the government in the community', they would, in my view, contain matters which would also relate to the affairs of an agency.[22]

1. In conclusion, Her Honour was not satisfied that it was apparent from the nature of the documents that they were exempt and was not satisfied that it would not be practicable to grant access to edited copies, excluding any exempt parts.
2. The Applicant relied upon the reasoning in the Davis case in support of the proposition that whenever a document contains matter that relates to a Minister's exercise of Ministerial functions, the document will also relate to the affairs of any agency.[23] I agree.
3. Curiously, the Respondent submitted that the Davis case does not stand for the test advanced by the Applicant and contended that the test applied by Her Honour was that: where a document contained material relevant to the Minister's exercise of his functions, in his capacity as a Minister, such a document relates to the affairs of an agency; and not that: whenever a document contains matter that relates to a Minister's exercise of Ministerial functions, the document will also relate to the affairs of any agency. In my view, this distinction is untenable and cannot be ascertained from a careful reading of Her Honour's reasoning.[24]
4. As indicated above, whenever a document contains matter that relates to a Minister's exercise of Ministerial functions, the document will also relate to the affairs of an agency. The fact that such document may also be of a party political nature does not preclude that matter from also relating to the affairs of an agency for the purposes of the Act.
5. It appears clear from Mr Nutt's witness statement that the Office of the Premier supports and serves the Premier in the Premier's exercise of Ministerial functions. The Chief of Staff only acts upon the instructions of the Premier and given the enormous demands upon a Premier's time, the Chief of Staff will frequently attend meetings on behalf of the Premier. In particular, Mr Nutt states that:

The functions of the OTP are to support and serve the Premier in his various capacities, including:

... in his ministerial role as head of the government and Minister for the Arts ...[25]

1. It also appears that Mr Kapel, as manager of the Office of the Premier, was directly involved in this support and service of the Premier.
2. Mr Nutt's statement further notes that:

As Chief of Staff to the Premier, I manage the OTP;[26] and

Mr Kapel's duties and responsibilities as Chief of Staff were the same as my duties and responsibilities ... save for one difference. Mr Kapel's duties and responsibilities did not involve direction of the Cabinet Office ...[27]

1. It follows that Mr Kapel's diary includes entries directly related to his (and the OTP's) support and service of the Premier in the Premier's Ministerial capacity. My examination of the Document also confirms this view. In this regard, Mr Nutt stated that:

Mr Kapel's diary during the relevant period relates to appointments made in his role as Chief of Staff to the Premier;[28] and

Mr Kapel's diary was used by Mr Kapel to manage his time in performing his duties as Chief of Staff by recording his intentions as to future activities.[29]

1. I accept the Applicant's submission that, given that Mr Kapel used his diary to manage his time in performing those duties, the diary itself must also relate to the affairs of an agency or agencies under the Act.
2. Furthermore, I accept that, the fact that Mr Kapel was a Ministerial adviser does not, of itself, preclude the contents of his diary from relating to the affairs of an agency.
3. There is no question that a Ministerial adviser performs a separate and distinct function to a public servant. However, as readily identified by Her Honour Judge Hampel in the Davis case, there can be an overlap in the performance of the respective functions. The 'value added' by the political acumen of a Ministerial adviser, does not render the subject matter any less part of a Minister's Ministerial responsibilities, which relates to the affairs of an agency.
4. It is uncontroversial that where a document is created or received by an agency and then provided to a Minister, then the document relates to the affairs of an agency because necessarily something has been done within an agency in relation to that document (even if that act is only providing it to a Minister). Equally, any document in the possession of a Minister, directing an agency to undertake an action, relates to the affairs of an agency, because it concerns what is actually taking place within the agency.
5. However, there is no basis for limiting the scope of 'Official document of a Minister' to these kinds of examples. Consistent with the stated purposes of the FOI Act, the concept of 'possession', for the purposes of s 5(1), should be broadly applied and extend to any document with which the Minister has a right or the power to access or deal. Furthermore, the expression 'relates to the affairs of an agency' does not connote direct involvement by an agency in the document per se, but rather whether the document records any act, matter or event which falls within the Minister's responsibilities as a Minister of the Crown.
6. Ultimately, the question of whether a document relates to the affairs of an agency is a question of fact that requires an analysis of the document's actual contents.
7. In most situations it will be readily ascertainable, from the nature and content of a document, whether it is in the possession of a Minister for a purpose outside of his/her Ministerial capacity. Obvious examples acknowledged in earlier Tribunal decisions include a document:
   • (a) relating to the Minister's private affairs;
   • (b) received solely in his capacity as a member of a political party; or
   • (c) relating to the administration of his/her electoral office.
8. In Wilson v Department of Premier and Cabinet,[30] the Tribunal was concerned with a request to disclose records relating to the Premier's Business Advisory Body or Business Round Table Group. The respondent (Department of Premier and Cabinet) had acceded to the original request in part and claimed exemption, on various grounds, to the remaining documents, which decision was affirmed by Senior Member Ball.
9. The respondent in Wilson's case had submitted, in relation to one of the documents, that part of the document was not in the possession of the Minister as a Minister but in his capacity as member of a political party. Senior Member Ball accepted the following submission made on behalf of the Respondent:

The concept of 'an Official document of a Minister' and the qualification that a document must relate to the affairs of an agency would appear to import a distinction between a document in the possession of the Minister as a Minister and a document in the possession of a Minister in some other capacity, such as his or her capacity as a member or officeholder of a political party or as a local member. Were it otherwise, all manner of party political or constituency documents in the possession of Ministers might be subject to FOI, a result that was plainly not intended...

1. The interpretation proffered by the respondent and endorsed by Senior Member Ball in Wilson's case was rejected by the Respondent in the current case. In my view, there was no misunderstanding on the part of the Senior Member, who expressed the essence of the respondent's submission as follows:[31]

The Respondent submitted that the heading to the last seven lines of an attachment to that document was not in the possession of the Premier as a Minister but in his capacity as a member of a political party. After examining the relevant document the Tribunal accepts that such a distinction can be drawn and accepts the submission of the Respondent [as quoted above]...

1. In Re Schubert v Department of Premier and Cabinet,[32] Senior Member Megay, was concerned with an application for release of the computerised appointment diary of the Premier over a period of 12 months. After finding that s 13(a) was not satisfied, the Tribunal considered whether the document qualified for release under s 13(b). The reasoning in Schubert's case was criticised by the Respondent in the current case on the basis that the Senior Member apparently interpreted an incorrect formulation of 'an Official document of a Minister'. While it is true that the definition of 'Official document of a Minister' appears to have been mis-transcribed in the reasons for decision, by the omission of the words 'and relates to the affairs of an agency',[33] in my view, there is no doubt that the Senior Member had regard to the correct wording of the definition. When the Senior Member turned her mind to s 13(b) she noted that:

There is no doubt in my mind that the Premier's diary is an Official document of a Minister and there was no argument on the point. What must be considered is whether there is contained in that Official document "some matter that does not relate to the affairs of an agency or of a department".

1. Upon examining a sample of the diary, the Senior Member formed the view that it did contain some exempt matter. However, in view of the 12 month period to which the request related, it would not be practicable to excise such exempt material... Without considerable effort, enquiry, editing and retrieval.[34] Accordingly, access was denied because it was not practicable to release an edited version. In my view, as discussed further below, similar concerns would not preclude the release of an edited version of the Document in this case.
2. In my view, the content of the Document clearly includes material relevant to the Premier's exercise of his functions in his various Ministerial capacities. In evidence, Mr Nutt confirmed that he only ever acted on the instructions of the Premier and in meetings may on occasions represent the Premier and communicate instructions given to him by the Premier.
3. For completeness, I will refer to the following authorities relied upon by the Respondent.
4. In North Sydney Council v Ligon 302 Pty Ltd[35] the High Court considered the scope of s 77(1) of the Environmental Planning and Assessment Act 1979 (NSW) which provided in part:

(a) the owner of the land to which the development application relates...[emphasis added]

1. A development application was lodged in respect of land, access to which included rights of way across an adjoining parcel of land. The High Court held that the absence of consent by the adjoining landowner was not a proper ground for the council to withhold its consent. The subject development was not proposed to be carried out on the adjoining land and therefore did not 'relate' to such land. In reaching this construction, the Court made specific reference to the purpose of the Act, noting that it is concerned with the environment and the amenities of various areas of the State. It is not concerned with the regulation of private rights of ownership, but with the physical use made of, or affecting, the topographical entity of land.
2. The Respondent sought to reason from Ligon's case that the word 'relates' used in conjunction with the word 'affairs' has the affect of limiting the scope of documents in the possession of a Minister to a sub-category of that broader class. I do not agree that such reasoning flows from Ligon's case_._ Indeed, both Ligon's case and Murchie's case_,_ to which the Respondent also referred, highlight the importance of interpreting words and phrases in the context of the particular legislation.
3. In New South Wales Crime Commission v Murchie[36] Greg James J had to determine the intended scope of the word 'affairs,' where it appeared in the expression 'concerning the affairs of the owner' in s 12(1) of the Criminal Assets Recovery Act 1900_._ His Honour noted the breadth of various dictionary meanings[37] and after examining in detail the context of the relevant section, His Honour concluded that:

...the 'affairs' of which the section speaks are those activities of persons suspected of serious crime related activity whose property is restrained by a restraining order under the Act which activities might affect the making of further orders under the Act.[38]

1. The reasoning in both Ligon and Murchie cases clarify why a narrow interpretation of 'relates' and 'affairs' respectively was consistent with the purpose of the relevant legislation in which those terms appeared. By contract, in this case, there is no identified mischief or inconsistency in giving the second limb of the definition, the broadest operation consistent with a Minister's capacity as a Minister.
2. It is acknowledged that while there is broadly similar legislation to the FOI Act in other Australian jurisdictions, decisions concerning such legislation may be of limited utility where the schemes are relevantly different.[39] However, certain observations made in Parnell v Office of the Premier of NSW[40] are equally applicable to the current case.
3. Parnell's case concerned an application for access to certain documents, including certain entries in the Premier's diary on a particular day. The application in respect of the diary entries was initially refused on the basis that the document did not fall within the definition of 'a Minister's document.'
4. Section 3.6.1 of the Freedom of Information Act 1989 NSW provides that a Minister's document means:

a document which is held by a Minister... and that relates to the affairs of an agency; but does not include an agency's document.

1. The respondent in Parnell's case submitted that a Minister's document did not include: personal affairs; duties as a member of Parliament; duties as a member of a political party; and duties as leader of that party. The respondent provided affidavit material to the effect that the relevant diary:
   • (a) was managed by the Premier's Private Secretary;
   • (b) included all of the Premier's proposed appointments and activities for each day, including: his responsibilities as Premier; as member for his electorate; as leader of his party; and as a private citizen;
   • (c) included a majority of meetings and events which related to issues across portfolios beyond those for which he has direct responsibility; and
   • (d) may not reflect what the Premier actually did, as changes may not be recorded.
2. The respondent conceded that the Premier's diary was a 'Minister's document' to the extent that the entries relate to information in relation to the Premier's appointments as Minister responsible for the Department of Premier and Cabinet; and the Community Relations Commission; and Premier of NSW; but not as member for his electorate; leader of the party; or as a private citizen. The NSW Administrative Decisions Tribunal ('ADT') affirmed this interpretation, but extended the ambit of 'a Minister's document' to the appointments concerning agencies for which the Premier was not the responsible Minister. In my view, this interpretation has equal application to the definition of 'Official document of a Minister' under the FOI Act.
3. The ADT denied access to the requested diary entries by reason that they only related to appointments in the Premier's capacity as member of the ALP.

1. Consistent with its failure to produce the Document at the hearing, the Respondent sought to resist the Application on the basis that no question of onus arises in terms of s 55, by reason that the Tribunal is faced with a question of law, specifically, statutory construction and whether the diary (and Document) constitutes 'an Official document of a Minister'.
2. Section 55 of the FOI Act provides:

(1) In proceedings under this Part by virtue of section 12, the principal officer upon whom the notice was served has the onus of establishing that the document concerned is not a document as described in section 8(1) or section 11(1).

(2) In proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

1. In my view, the Respondent is subject to s 55 for the purpose of this Application. The position adopted by the Respondent is both untenable and in any event not consistent with the approach apparently taken by the original decision-maker, or the approach taken at the hearing. In particular:
   • (a) as indicated above, there is at the very least a strong suggestion in the decision-maker's letter of 27 January, 2012 that he had examined the Document prior to making a determination; and
   • (b) the Respondent relied upon evidence of the current Chief of Staff as to the nature and content of the diary which he keeps, in support of its statutory construction.
2. However, there was no direct evidence as to the nature of the actual contents of Mr Kapel's diary or the manner in which he used and relied upon it. In my view, this was inexcusable.
3. Mr Kapel was still Chief of Staff both at the time of the original request [15 November 2011] and at the time when the belated determination was made [27 January 2012]. He was also still available to the Respondent at the time when it filed a Statement pursuant to s 49 VCAT Act [6 March 2012] and according to Mr Nutt did not depart for overseas until sometime early May 2012. Accordingly, there was ample time within which the Respondent could have obtained a statement from Mr Kapel and indeed a statement from Ms Carney, who was reportedly responsible for making entries in the diary. In my view, the Respondent has not taken all reasonable steps to discharge the onus imposed by s 55.
4. In my view, the Document should have been examined by the original decision-maker, if indeed it was not; and it should have been produced to the Tribunal at the commencement of the hearing as previously requested.

1. My examination of the Document, made available after the hearing, confirms that entries have been made in a manner consistent with the evidence given by Mr Nutt in relation to his own diary. Some entries have more description as to the nature and purpose of a particular meeting. No entries appear for the period Tuesday 1 February to Tuesday 8 February 2011 inclusive. Entries otherwise appear to encompass:
   • (a) Matters of a clearly personal nature;
   • (b) Staff meetings;
   • (c) Meetings apparently concerning Government business;
   • (d) Variously described meetings including and/or chaired by the Premier;
   • (e) Meetings with third parties, including media personnel; and foreign dignitaries; some also including the Premier;
   • (f) Airline flight bookings;
   • (g) Meetings with other Ministers; and
   • (h) 'FYI' entries.

1. The parties agreed that the Document is (deemed to be) in the possession of the Minister (in this case the Premier) and is also not a document of an agency.
2. Each entry in the Document should properly be considered as a separate document, for the purpose of s 13 of the FOI Act.
3. Assuming that the Document, which I have now examined, is typical of the diary of Mr Kapel as the Premier's Chief of Staff, I find that such diary and the Document within that diary, recorded entries of proposed appointments and other notations, which related to the daily management of the Chief of Staff's time, as well as recording certain events concerning the Premier specifically or the Government in general.
4. An examination of the Document reveals certain entries which are clearly not relevant to the Premier's capacity as Premier or other Minister of the Crown, and accordingly do not relate to the affairs of an agency. These are entries which:
   • (a) are apparently personal in nature;
   • (b) relate to the internal administration of the OTP, such as staff meetings and staff appointments;
   • (c) could possibly relate to the affairs of the Premier's electoral office;
   • (d) could possibly relate to the Premier's membership or leadership of his political party; and
   • (e) could possibly relate to the administration of the Parliament.
5. There are other entries which, on their face, do or could relate to the affairs of an agency. Those entries which do not fall under one of the preceding sub paragraphs, constitute an 'Official document of the Minister' which qualify for release under s 13(b) of the FOI Act, subject only to any applicable claimed exemptions.
6. The Respondent bears the onus of proving either that the entry falls outside of the ambit of Ministerial capacity or that the entry otherwise qualifies for exemption.
7. In my view, for the purpose of this Application, it is irrelevant whether:
   • (a) The Document originates from an agency or constitutes a direction to an agency;
   • (b) The Document was ever provided to an agency or a public servant;
   • (c) The Premier was involved in or contributed to the entries made in the Document;
   • (d) The Premier attended any particular appointment entered in the Document;
   • (e) The Premier ever accessed the diary or the Document, although it is quite conceivable, as submitted by the Applicant, that the Premier may need to access the diary to verify the timing of meetings attended by the Chief of Staff, on his behalf, and the main attendees;
   • (f) The diary entry contains any substantive information about the content of any meeting; that is, the diary entries do not need to constitute stand alone documents; and
   • (g) Any recorded meeting was in fact cancelled or not attended by the Chief of Staff.
8. The activities of the OTP and the role performed by the Chief of Staff, on behalf of and subject to the instructions of the Premier, clearly compliment the functions of the Departments for which the Premier is vested with Ministerial responsibilities, as well as agencies for which other Ministers bear Ministerial responsibility. The critical determinant of whether the diary entries in this case relate to the affairs of an agency are whether the Chief of Staff, by the diary entry, has recorded an attendance or other event which is referable to the Ministerial responsibilities of the Premier or any other Minister, as a Minister of the Crown.
9. Accordingly, the range of entries which qualify for release include:
   • (a) attendances involving a range of stakeholders, both with and without the Premier; and both with and without public servants;
   • (b) interaction with public servants, both with and without the Premier;
   • (c) attendances involving Parliamentary colleagues; the media, unions; community, business and ethnic parties and organisations;
   • (d) attendances involving foreign dignitaries, including politicians and diplomats;
   • (e) other entries which may record events, whether or not attended by the Chief of Staff; and
   • (f) entries in the nature of descriptions, observations or outcomes.
10. Finally, I am satisfied from an examination of the Document that it would be practicable to grant access to an edited copy of the Document, if need be.
11. The decision on behalf of the Minister to refuse to grant access to the Document under s 13(b) will be set aside. The request will be remitted to the Office of the Premier for the Minister or his delegate to deal with in accordance with s 13 and s 25.

[2] Mr Nutt conceded under cross-examination that he did not have any particular knowledge of how Mr Kapel managed his diary but could only give general evidence based on his discussions with Ms Carney.

[3] For example, see Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471, 477 (Mason CJ, Brennan, Dawson, Gaudron and McHugh JJ) where the High Court was interpreting the purpose of the Encroachment of Buildings Act 1922 (NSW).

[4] In both The University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177, Brooking J at 178 and in Department of Premier and Cabinet v Birrell (No 2) [1990] VicRp 5; [1990] VR 51, Murphy J at 53, reference was made to the long title in construing the FOI Act.

[5] Section 5(1) defines department to mean a department within the meaning of s 10 of the Public Administration Act 2004 or an office specified in section 16(1) of that Act. Section 5(1) defines council to have the same meaning as in s 3(1) of the Local Government Act 1989 (Vic). Section 5(1) defines prescribed authority to be a body corporate established by an Act or by the Governor in Council or by a Minister, or to be a body declared by the regulations to be a prescribed authority, as to which see Freedom of Information Regulations 2009.

[6] Freedom of Information Bill Second Reading Speech 14 October 1982 Hansard Legislative Assembly 1061-1066.

[7] Freedom Of Information Bill 1982 Notes of Clauses 17.12.1982.

[8] See the cases of Wilson, Schubert and Davis herein.

[9] (2001) 19 VAR 35 at [19].

[12] Section 38 of the Interpretation of Legislation Act 1984 (Vic).

[14] [2011] VCAT 1629.

[18] [1993] AATA 9; (1993) 30 ALD 242.

[19] Such as a Minister's private rate notice for his home or the registration papers for a private motor vehicle.

[20] Refer also Davis v Office of the Premier [2011] VCAT 1629 at para 54 per Hampel J.

[23] Davis v Office of the Premier [2011] VCAT 1629 at [55]- [56].

[30] [2001] VCAT 1769.

[32] (2001) 19 VAR 35 at [19].

[33] Reproduced under paragraph 17 of the decision.

[35] [1996] HCA 20; (1996) 185 CLR 470 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).

[36] [2000] NSWSC 591; (2000) 49 NSWLR 465.

[39] For example, R v Kelly; Ex parte Victorian Public Service Board [1985] VicRp 81; [1985] VR 825, 831 (Kaye J); Parnell v Office of the Premier of New South Wales [2009] NSWADT 42, [17] to [22], [25], [30].

[40] [2009] NSWADT 42.