Secretary to the Department of Justice and Community Safety

Tran v Office of the Chief Parliamentary Counsel (Review and Regulation) [2022] VCAT 61

1 In proceeding Z741/2020, the decision made by the Information Commissioner on 19 August 2020 is affirmed.

2 In proceeding Z742/2020, the decision made by the Information Commissioner on 20 August 2020 is affirmed.

3 In proceeding Z743/2020, the decision made by the Information Commissioner on 4 September 2020 is affirmed.

1 These proceedings concern requests Mr Giang Tran and Mr Tony Chang made for access to documents relating to a legislative amendment to the Corrections Act 1986 (Vic) (Corrections Act) which came into force on 19 November 2019. The requests for access were made under the Freedom of Information Act 1982 (Vic) (FOI Act).

2 The requests were not for documents personal to the applicants or which referred to them by name. In broad terms, the requests concerned how the legislative amendment was communicated between certain government departments, how the amending legislation came to be drafted and then approved by Cabinet.

3 The requests were directed to the Office of the Chief Parliamentary Counsel (OCPC) and the Department of Justice and Community Safety (DJCS). The latter department was previously known as the Department of Justice and Regulation and included various business units including Corrections Victoria.

4 After consultation between the parties as to the terms of the FOI Act requests, the OCPC and the DJCS discussed the scope of the requests and the applicants agreed to modify and clarify aspects of the requests. The agreed modifications included not pressing for Cabinet documents.

5 In due course, the OCPC and the DJCS decided to refuse the access requests, relying on section 25A(5) of the FOI Act. That provision entitles an agency which is subject to the FOI Act to refuse to grant access to documents without having identified any or all of those documents and without specifying any exemptions claimed for the individual documents. There are preconditions to the application of section 25A(5) which include that it is apparent from the nature of the documents, as described in the request, that all of the documents to which the request is expressed to relate are exempt documents.

6 The respondents decided that any documents which might have fallen within the scope of the requests were exempt because they were protected by legal professional privilege under section 32 of the FOI Act. Applications were made to the Office of the Victorian Information Commissioner (OVIC) to review the respondents' decisions. The Information Commissioner reached the same conclusions and it is those decisions which are now before the Tribunal.

7 The respondents maintain their reliance on section 25A(5) of the FOI Act based on legal professional privilege (under section 32 of the FOI Act) and, for completeness, they also relied on the exemption relating to Cabinet documents contained in section 28 of the FOI Act.

8 The applicants contended that, even if all documents responsive to the access requests are covered by the section 32 exemption (which they do not concede), legal professional privilege was lost by the respondents due to 'a deliberate abuse of statutory power and by that abuse prevent[ing] others from exercising their rights under the law'.[1] They further contended that whether or not legal professional privilege applies, the public interest requires that access be granted to the documents sought.

9 In order to understand those submissions, it has been necessary to describe the applicants' circumstances relevant to their FOI Act access requests and the relationship with the Corrections Act.

10 The underlying background to these proceedings relates to how the Corrections Act allows people sentenced to imprisonment to be granted reductions on their sentence on account of good behaviour while suffering disruption or deprivation during an emergency in the prison in which their sentence is being served. Those sentence reductions are known as Emergency Management Days (EMD) and are determined by a delegate of the Secretary to the DJCS (Secretary). Relevant to this matter, the delegates were drawn from Corrections Victoria, a business unit within the DJCS which represented the entirety of the State's system of correctional facilities.[2]

11 The applicants were imprisoned in the Metropolitan Remand Centre (MRC) on 30 June 2015 when a riot broke out and continued into the next day. The riot led to prisoners being locked down and losing access to programs and benefits. The applicants made applications for EMD in respect of the riot but, before a decision was made, the Corrections Act was amended to exclude prisoners who were at the MRC on 30 June 2015 and 1 July 2015 from grants of EMD.

12 The applicants contended that the Commissioner of Corrections (Commissioner) and/or the Secretary and/or the Commissioner's delegates and/or her agents 'deliberately or recklessly delayed and refused to make a decision on the Applicants' applications so as to render them inutile'[3] upon the relevant amending provision in the Corrections Act coming into effect. The applicants say that amounted to a grave abuse of power which is sufficient to establish an exception to legal professional privilege and/or a public interest in the access request being processed under the FOI Act.

13 The applicants produced no direct evidence of the alleged breach of statutory duty and abuse of power. Instead, the applicants relied on the timeline of the life of their EMD applications and correspondence from the Commissioner (Ms Emma Cassar) and the Deputy Commissioner of Corrections (Mr Rod Wise) which they say show the decision-making on the EMD applications were postponed 'while steps were put in train to remove the applicants' eligibility for EMD'.[4]

14 They contended that the documents sought must contain communications between the respondents and others to evidence the initiation or furtherance of the abuse.[5] They also contended that, as the Secretary or the DJCS failed to exercise its statutory powers on EMD, communications with parliamentary drafters and others in relation to the preparation of legislation to 'validate (or at least ratify) the abuse of power' are not subject to any privilege, adding that there 'is no privilege in iniquity'.[6]

15 Both the OCPC and the DJCS denied any impropriety in respect of the preparation processes for the drafting of the Corrections Act amendment. They contended that the applicants had not met their burden to prove there is a basis for legal professional privilege to have been lost in the documents, and so the Tribunal should find the requirements of section 25A(5) of the FOI Act have been established such that the Information Commissioner's decisions should be affirmed.

16 The respondents conceded that there was delay in the processing of the applicants' EMD applications but that it was explicable and there was nothing untoward in how the events unfolded. They denied there had been any breach of statutory duty or abuse such that legal professional privilege over the documents to which access was sought under the FOI Act was lost.

17 The respondents contended there were no communications between those responsible for deciding the applicants' EMD applications within Corrections Victoria and those involved in the processes which led to the amendment of the Corrections Act. Accordingly, impropriety of the kind alleged had not occurred and the section 32 legal professional privilege could not be found to have been lost. The respondents also relied on the FOI Act section 28 exemption protecting Cabinet documents to contend that the documents described in the access requests were exempt.

18 I next refer to the amendment made to the Corrections Act in late 2019 which is the foundation for the FOI Act access requests.

The Corrections Act amendment

19 The relevant amendment was to section 58E of the Corrections Act. The amendment was contained in clause 30 of the Justice Legislation Amendment (Serious Offenders and other Matters) Bill 2019 (Vic) (the Bill).

20 The Bill was omnibus legislation that covered a number of matters and was not limited to a review of the Corrections Act.

21 Prior to the amendment, section 58E said:

(1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation -

(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

(2) Subsection (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section.

(3) This section does not apply to any prisoner (whether or not the prisoner was involved in any way) in respect of or in relation to -

(a) any event (including any emergency or riot) at the Metropolitan Remand Centre, Victoria, on 30 June 2015 and 1 July 2015 and the security response to that event; or

(b) any emergency, riot or other significant security incident that is caused or contributed to by that prisoner or any other prisoner

23 Clause 43(4) of the Bill contained transitional provisions. Relevant to this case, they had the effect that the amended form of section 58E of the Corrections Act applied regardless of whether:

(a) an application for a reduction under section 58E(1) had been made but not determined before the commencement of [the amended form of section 58E]; or

(b) before the commencement of [the amended form of section 58E] a prisoner had taken any steps to ask the Secretary to reduce the length of a sentence under section 58E; or

(c) before the commencement of [the amended form of section 58E] the Secretary had begun any consideration of whether the length of a sentence should be reduced under section 58E.

24 The Bill was introduced on 15 October 2019. It was passed on 14 November 2019 and received Royal Assent on 19 November 2019.

25 The applicants' submissions expressed disquiet at the proposition that the amendment to section 58E contained in the Bill was intended to exclude the application of EMD in relation to the prisoners at the MRC at the time of the 2015 riot.

26 The Second Reading Speech on the Bill said the changes made to the Corrections Act were to:

improve the administration of prisons, in particular by excluding the application of [EMD] in relation to the riot at the [MRC] in 2015 and any future cases of emergencies, riot and other significant security incidents caused or contributed to by prisoners in prisons, police gaols and other places of custody.

Victoria's prisons, police gaols and other places of custody must always be secure and safe for persons held there and for the staff working there.

Prisoners should not get reduced sentences when they are the cause of significant security incidents in custody. The Bill will enshrine this principle in law.

28 As required by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), a statement of compatibility (Charter Statement) was tabled in relation to the Bill on 16 October 2019. The Charter Statement contained the Minister for Corrections' opinion that the Bill was compatible with human rights provided by the Charter. In relation to clause 30 of the Bill, the Charter Statement said (italics my emphasis):

Amendments to the Corrections Act including prisons and parole [EMD]

Clause 30 of the Bill may engage sections 24 and 27 of the Charter because it includes a provision that relates to the riot at the [MRC] in 2015.

Once an offender is sentenced, the administration of that sentence passes to the Executive government. Under section 58E of the Corrections Act, the Secretary . . . (or delegate such as the Commissioner . . .) may reduce the length of a prisoner's sentence by granting [EMD] where a prisoner has had their routine disrupted due to circumstances that are an emergency or industrial action, or of an unforeseen and special nature in a prison or police gaol. In practice, it has generally been interpreted that a significant disruption, rather than a standard security response to an incident, is required before [EMD] will be granted. There is no entitlement or right to being granted an [EMD]. I am of the view that the right to a fair hearing is not limited by these reforms.

Clause 30 amends the Corrections Act to explicitly exclude for all prisoners the application of [EMD] in relation to the prison riot at the [MRC] in 2015 and the Bill expressly names that event.

Clause 30 will also apply to any future emergency, riot, or other significant security incident that is caused or contributed to by a prisoner. In addition to a riot, the legislation would in practice apply to other significant security incidents, for example a fire caused or contributed to by a prisoner, or an attack by a prisoner on another prisoner or on a staff member working at the prison, police gaol or other place of custody.

In my view, regarding sections 24 and 27 of the Charter, clause 30 is not criminalising behaviour that was previously lawful. Rather, new section 58E(3) in clause 30 is clarifying the scope of an existing statutory discretion. While retrospective laws are unusual, the clause is warranted because the riot at the [MRC] in 2015 was an exceptional and rare event. It is critical to ensure that all and any prisoners do not receive a reduced sentence due to the lawful security response to that event. In addition, the jurisdiction of the Supreme Court of Victoria to review administrative decisions made by the Secretary . . . (or delegate such as the Commissioner . . .) regarding [EMD] is not limited by clause 30.

Clause 30 reflects the paramount principle that prisoners do not receive a reduced sentence when they or any other prisoners cause or contribute to a significant breach of custodial security. This applies even if a prisoner was not involved in the other prisoner's security breach, which will ensure that there is no benefit whatsoever to any prisoners for the security breaches caused by other prisoners. The safety and security of the overall prison system is paramount.

29 So, it is apparent that Parliament passed the Bill which led to the amendment excluding prisoners in the MRC at the time of the 2015 riots well aware that was the intended outcome.

An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if -

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and

(b) either -

(i) it is apparent from the nature of the documents as so described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document; or

(ii) it is apparent, from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document.

31 It is well understood that, when considering whether section 25A(5) of the FOI Act applies, the following three prerequisites must be met:

(a) Based solely on the description in the request, the decision-maker must identify the nature of the documents sought in the access request, meaning the inherent or essential quality or character of the documents requested;

(b) The decision-maker must determine whether the documents, as described by the applicant in the access request, have the inherent or essential quality or character of being exempt. It must be apparent that all of the documents are exempt; and

(c) From the face of the request or the applicant's declared wishes, there must be no scope to provide edited copies of any of the documents.[7]

32 When it comes to decisions based on section 25A(5) of the FOI Act, the agency carries the burden of proving it applies, including proving the relevant exemptions would apply to the documents in issue.

33 As I understood it, the applicants declared no wishes as to receiving edited copies of the documents. Accordingly, I have considered whether, from the face of the request, there is scope to provide edited copies.

34 It is convenient to record now that the applicants' submissions proposed that, in order to assist me and accord them procedural fairness, the documents identified by the respondents be provided to them and me in list form or in full.[8] As I am satisfied on the evidence before me that the essential character or nature of the documents is apparent from the terms of the requests as made and that all documents within the scope of the requests would be exempt in full, that was not required.

(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.

(a) Cabinet includes a committee or sub-committee of Cabinet . . .

36 Neither the respondents nor the Information Commissioner relied on section 28 when making their decisions. The applicants submitted that the respondents should not be entitled to raise fresh grounds before the Tribunal. That is no bar to reliance being placed on additional exemptions in these proceedings, given they call for merits review.[9] While the applicants made no submissions about whether the section 28 exemption would apply (and had in fact ruled such documents out of scope when making the access requests), I have considered it in the interests of completeness.

37 The nature of the section 28 exemption was recently described in Davis v Major Transport Infrastructure Authority,[10] as follows (footnotes omitted):

It is a longstanding principle of our Westminster system of government that the deliberations of Cabinet are secret. That is the fundamental reason for the existence of s 28.

Under s 28(7), 'Cabinet' includes a committee or sub-committee of Cabinet.

The public interest override in s 50(4) does not apply to Cabinet documents.

The actual use made of a document may be relevant in ascertaining the purpose for which it was created, but is not decisive of that question.

It is not necessary to prove that the document was actually submitted to the Cabinet; nor that Cabinet actually considered the document, although evidence as to the actual use to which the document was put could shed light on the purpose for which it was created.

A document will only be exempt if the sole purpose or one of the substantial purposes, or the dominant purpose, or one of a number of significantly contributing purposes, for which it was prepared was for it to be submitted to the Cabinet for consideration.

The purpose of the preparation of the document must be for submission for consideration by the Cabinet and not merely preparation for the purpose of physically placing the document before the Cabinet.

The Tribunal must be satisfied that the particular document 'fits squarely' into the Cabinet documents exemption. Bearing in mind the object of the FOI Act to extend as far as possible the community's access to information in the possession of government, it is not enough for the document merely to have some connection with Cabinet, or because it has a Cabinet 'aroma' about it.

38 The respondents submitted that the planning, development and drafting of legislation is a core function of Cabinet. As indicated by the evidence discussed below, legislation proposals come to Cabinet in at least two stages: first, Cabinet Approval in Principle for the drafting of a Bill, and secondly, approval of a Bill at Cabinet. Accordingly, documents relating to the planning, development and drafting of legislation would disclose deliberations and decisions of the Cabinet.

39 The applicants took no issue with those submissions and I adopt them.

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.

41 The respondents' submissions set out the law as it applies to section 32 of the FOI Act and principles relevant more broadly to legal professional privilege.

42 While the applicants took issue with the proposition that all documents within the terms of the access request would be covered by section 32, there was no dispute as to the respndents' submissions as to when it will apply. Accordingly, I have adopted the respondents' submissions which are summarised below.

43 Under the FOI Act, a document will be exempt under s 32 if:

• It contains a confidential communication between the client (or the client's agents) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice or is referable to pending or contemplated litigation;
• It contains a confidential communication between the client's professional legal advisers and third parties that was made for the dominant purpose of pending or contemplated litigation; or
• It contains a confidential communication between the client (or the client's agents) and third parties that was made for the purpose of obtaining information to be submitted to the client's professional legal advisers for the dominant purpose of obtaining advice on pending or contemplated litigation.

44 As a general proposition, legal professional privilege may be claimed in relation to advice sought from and given by a lawyer employed by the government.[11]

Legal professional privilege and draft legislation

45 The decision of the Full Court of the Federal Court in State of New South Wales v Betfair Pty Ltd[12] is decisive in relation to the application of legal professional privilege to Parliamentary Counsel documents as it confirms that the relationship between the instructing agencies of government and the Parliamentary Counsel in producing draft legislation is one attracting legal professional privilege. In particular, Betfair is authority for the proposition that draft instructions and related communications between the State and third parties in relation to the drafting and amendments to legislation are subject to legal professional privilege.

46 The Full Court in Betfair noted that it was not in dispute that:

• The relationship between the State and Parliamentary Counsel may be one of client and lawyer;[13] and
• If advice were sought of and given by Parliamentary Counsel in relation to the drafting and preparation of draft legislation, that would qualify for legal advice privilege.[14]

47 Those propositions were not disputed by the applicants in these proceedings either.

48 The Court stated the question arising in Betfair went to the scope of the retainer between the State and Parliamentary Counsel in circumstances where Parliamentary Counsel is asked to prepare draft legislation. The scope of a retainer may not be confined to the client's express instructions. Matters which would reasonably arise in the course of carrying out express instructions should be regarded as coming within the scope of the retainer.

49 Their Honours Kenny, Stone and Middleton JJ stated:[15]

Similarly with preparing draft legislation, either in the form of an Act of Parliament or a regulation. Parliamentary Counsel do not merely type or format the legislation. Parliamentary Counsel apply legal skill and knowledge to give written expression to the policy underlying the proposed legislation. Parliamentary Counsel would be expected, and perhaps under a duty, to advise upon the legality or effectiveness of the legislation being sought by the instructors. In the case of subordinate legislation, if regarded as beyond power, Parliamentary Counsel would presumably advise of this view. Similarly, if an Act of Parliament was considered unconstitutional, or inconsistent with another Act of Parliament, this is a matter Parliamentary Counsel would be expected to advise upon, even if the only express instruction was to draft the legislation.

Where no problem of this kind arises, Parliamentary Counsel, in drafting the legislation and presenting the draft to the government agency, is in effect advising that the draft legislation is in accordance with the instructions given and gives legal effect to those instructions. The draft itself is not the legal advice, but the communication in providing the draft legislation contains implicitly the advice of Parliamentary Counsel endorsing the draft legislation as being effective and valid.

It is impossible to disentangle the creation of the draft legislation and the giving of advice in these circumstances. It is not a matter of there being multiple concurrent purposes. Undoubtedly if there were purposes of equal weight, then neither would be dominant, and a claim for privilege would fail. However, there is only one purpose here - to obtain the advice of Parliamentary Counsel, and the communicating of that advice is given in the form of draft legislation.

Therefore, the purpose of the government agency providing instructions to Parliamentary Counsel is to obtain effective and valid draft legislation that is in accord with the instructions. The provision of draft legislation without more necessarily involves Parliamentary Counsel implicitly advising that the draft legislation provided is effective and valid.

50 The decision in Betfair has been applied in other cases. In particular, the Victorian Supreme Court, in Tabcorp Holdings Limited v State of Victoria (No 2),[16] applied Betfair in finding that communications in relation to the preparation and drafting of legislation are properly the subject of client legal privilege.

51 A privileged document may cease to be privileged in the event of 'waiver'. Waiver may be express or implied. A person may unintentionally waive privilege by particular conduct that is inconsistent with the maintenance of confidentiality which the privilege is intended to protect.

52 There was no submission that either respondent had in any way, whether by conduct or otherwise, waived the privilege that is in the documents being sought by the applicants.

53 There was no dispute that legal professional privilege does not protect communications between a lawyer and client made for the purpose of guiding or assisting in the commission of a fraud or a criminal offence.

54 Both parties relied on Attorney General (NT) v Kearney.[17] The respondents summarised the relevant matters as follows:[18]

• In claiming an abuse of statutory power to protect crime and fraud, evidence of that charge must be in clear and definite terms;
• There must be prima facie evidence to support a foundation of fact as opposed to an allegation; and
• The privilege is not displaced by making a mere charge of crime or fraud.

55 The respondent's submissions noted that, in Kearney, there was prima facie evidence that communications between the Northern Territory Government and its legal advisers had been made to further a deliberate abuse of legislative power.

56 The respondents also referred me to the NSW Civil and Administrative Tribunal's decision in EDD v Secretary, Department of Communities and Justice[19] where that Tribunal dealt with an application for access to documents where the respondent relied on legal professional privilege and the applicant claimed that privilege was lost due to fraud. The NSW Tribunal was not persuaded by evidence that there are reasonable grounds for finding that the alleged fraud or misconduct occurred and that a communication was made in furtherance of the commission of the fraud or abuse of power.

57 The respondents also referred me to the ACT Administrative Appeals Tribunal's decision in Dunstone v Department of Urban Services,[20] where the ACT Tribunal considered whether legal professional privilege had been lost because the Territory had unlawfully or improperly exercised its powers amounting to an abuse of power. That Tribunal found no evidence that any of the officials involved were engaged in pursuing a purpose they knew to be outside statutory power or that they were reckless of whether the purpose was outside statutory power. Accordingly, the claim that privilege had been lost failed.

58 The respondents contended that, in this case, for privilege to be lost the applicants were required to demonstrate by evidence that:

• The Secretary and OCPC had engaged in misconduct amounting to abuse of power; and
• The communications between DJCS and OCPC were made in furtherance of that abuse of power.

59 While in their submissions in reply and at the hearing the applicants took issue with the way the respondents contended the above propositions ought to be applied, they did not take issue with the correctness of the respondents' summary of the applicable law. I therefore adopt it.

60 The respondents contended that, in order to make findings on the applicants' allegations of misconduct in these proceedings, the standard to be applied is that discussed in Briginshaw v Briginshaw,[21] such that the Tribunal must reach a comfortable level of satisfaction in finding the matters proven on the balance of probabilities, consistent with the seriousness of the allegations and reflecting the serious consequences of any finding. I accept that submission.

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

62 The applicants contended that, for the same reasons as to why they say legal professional privilege has been lost in respect of the documents the subject of the access requests, the public interest override also arises.

63 After their EMD applications were rendered otiose due to the amendment of section 58E of the Corrections Act, the applicants made applications for access to documents. As stated above, those access requests did not relate to documents about the decision-making on their own EMD applications. Rather, they were for access to documents relating to the amendment of section 58E of the Corrections Act.

64 Each applicant made a request for access to the OCPC. Those requests were refused.

65 The applicants made separate but identical requests for access to the Secretary which were dealt with together and also refused.

66 The applicants then sought review of the respondents' decisions by OVIC and, on 19 and 20 August 2020 and 4 September 2020, the Information Commissioner upheld each of the refusal decisions.

67 The applicants then exercised their right to have the Information Commissioner's decisions reviewed by the Tribunal. Proceedings Z741/2020 and Z742/2020 concern each individual applicant's requests to OCPC and proceeding Z743/2020 concerns the requests to the Secretary.

68 In February 2020, Mr Tran made a request for access to documents addressed to the Department of Premier and Cabinet (DPC). The request referred to Mr Tran's EMD application and sought documents relating to that and also to documents associated with the Bill. Correspondence between Mr Tran's solicitors and the DPC led to an agreement to narrow the request including by ruling out of scope any relevant Cabinet documents and also limiting the request to documents associated with the Bill.[22] On 19 March 2020, the DPC advised that no documents had been located. On 15 April 2020, Mr Tran's solicitors asked that the access request as narrowed via the discussions with the DPC be processed by the OCPC.[23]

69 The terms of Mr Tran's request were as follows, treating the references to the DPC as references to the OCPC:

All documents existing from July 2017 onwards in relation to the planning and drafting of s 30 of the [Bill] that fall in the categories below:

(a) all correspondence, notes or other documents exchanged between the [DJCS] (including Corrections Victoria) and the [DPC].

(b) all correspondence, notes or other documents exchanged between any Members of Parliament of Victoria and the [DPC].

(c) all correspondence, notes or other documents exchanged between the Victorian Government Solicitor's Office and the [DPC]; and

(d) all correspondence, notes or other documents relating to the Bill specifically.

The above includes in particular any documents referencing [EMD] . . .

. . . Examples of documents that might fall in the above categories are as follows:

(a) an email from the VGSO to the Secretary of the [DPC] concerning [EMD] and/or the Bill.

(b) written submissions sent by Corrections Victoria (operating under the [DJCS]) to the [DPC] concerning reform being needed to the scheme for [EMD]

(c) a draft Bill being exchanged between the [DPC] with a Member of Parliament (e.g. Premier of Victoria)

(d) a file note of a telephone conversation between the Secretary to the [DPC] with the Premier of Victoria concerning s 30 of the Bill.

70 Mr Chang's request was made to the OCPC on 20 April 2020, after similar discussions were held as to limiting the scope of the request and agreeing that it be directed to the OCPC. The parties agreed that in all relevant respects the access request was in the same form as that made by Mr Tran.

Z743/2020 - Mr Tran and Mr Chang's requests to the DJCS

71 The applicants' individual but identical requests to the DJCS were made on 7 February 2020. Discussions were held as to the terms of the requests and, on 27 February 2020, a request in the following form was accepted for each applicant:

I would be grateful if you could kindly provide all documents in relation to the planning, development and drafting of s 30 of [the Bill] or any other provisions in relation to [EMD], including but not limited to the following categories in respect of the above:

a) All correspondence, notes or other documents exchanged between the [DJCS] (including Corrections Victoria) and the [DPC] (including the OCPC);

b) All correspondence, notes or other documents exchanged between any Members of the Parliament of Victoria and the [DJCS] (including the OCPC); and

c) All correspondence, notes or other documents exchanged between the Victorian Government Solicitor and the [DJCS] (including the OCPC);

d) All correspondence, notes or other documents relating to the Bill and to pending court proceedings, in relation to [EMD].

Any references to the [DJCS] also apply to any of its previous names.

72 I was informed at the hearing that the reference to 'pending court proceedings' in item (d) above could be disregarded. I understood that was on the basis that legal professional privilege would most likely apply to all such documents.

Approach to the terms of the requests, the respondent' evidence and the scope of the submissions

73 As set out above, section 25A(5) of the FOI Act provides that a refusal decision may be made by an agency 'without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document'.

74 The access requests in these proceedings were made specifying a broad group of documents and then categories and examples of the kinds of documents the applicants expected to exist were given.

75 Two of the respondents' witnesses gave evidence they had examined the relevant OCPC and DJCS files in full or in part.

76 Ms Marina Farnan, Chief Parliamentary Counsel, examined OCPC's file in respect of the Bill and her evidence included statements about the requests made and whether certain documents existed. On her evidence, there were no documents held by the OCPC within items (b) and (c) of the requests.[24]

77 Ms Carly Edwards, Associate Deputy Secretary, Policy, Strategy and Offender Outcomes, Corrections and Justice Services Group, examined some of the documents in the relevant DJCS file and also gave evidence that she did not believe there were any documents within the terms of item (b).[25]

78 As I understood it, the witnesses' examinations of the files did not purport to amount to the processing of the access requests under section 26 of the FOI Act. Rather, the examination of those files was undertaken for the purpose of giving evidence in this proceeding and particularly to allow them to give evidence on the alleged loss of legal professional privilege.

79 Given that section 25A(5) requires an examination of the terms of the access request rather than actual documents, my focus must be on that theoretical process. Having said that, it would be of no practical assistance to the parties to disregard evidence that certain documents do not exist because that could lead to a finding that the request must be processed because the pre-conditions to section 25A(5) were not proven to be satisfied in respect of all documents.

80 The submissions in this proceeding covered a wide range of matters relating to the EMD decision-making process in respect of the applicants, leading up to the introduction of the Bill. Given the access requests are confined to the planning, development and drafting of clause 30 of the Bill and any other amendments relating to EMD, the wider issues are not all relevant to my review of the Information Commissioner's decisions as to the application of section 25A of the FOI Act to the requests.

81 I next set out the factual circumstances concerning the applicants' EMD applications before turning to the evidence before me.

82 The parties prepared a joint chronology of events relevant to this proceeding. At the conclusion of the hearing, I directed the parties to provide copies of documents referred to in the review which were not already contained in their joint Tribunal Book. The respondents largely undertook that task and the applicants supplied one further email.[26] The filing of the documents was accompanied by some further submissions to which I refer to in due course.

83 The following summary of events relevant to the EMD applications is largely based on the parties' chronology and supporting documents.

84 I record that, while in these Reasons I draw some provisional conclusions about what happened over the course of the consideration of the applicants' EMD applications, I ought not to be taken to have made final findings of fact about the communications and other dealings between the applicants' solicitors, the Secretary and Corrections Victoria. That is because the relevant officers from the DJCS and Corrections Victoria did not give evidence before me. That is also the case because my focus is on the documents in issue under these FOI Act proceedings and the factual matters relevant to whether section 25A(5) of the FOI Act applies to all documents described in the applicants' access requests.

85 The MRC riot commenced on 30 June 2015 and lasted for around 14 hours. Prisoners were locked in their cells and were unable to access programs and services. More than 1,800 applications were made for EMD.[27]

86 In the written submissions filed on behalf of the applicants dated 23 December 2020, it was asserted that the applicants took no part in the rioting and were of good behaviour before, during and after the riot. No evidence to that effect was called. It is neither appropriate nor necessary to make a finding on the question.

87 On 28 April 2017, Mr Tran's solicitors wrote to Corrections Victoria enquiring about his eligibility for EMD.[28] On 3 May 2017, Deputy Commissioner Wise wrote to Access Law stating that enquiry was taken to have been an application for EMD and advising that he had refused Mr Tran's application.[29]

88 On 5 May 2017, Access Law wrote to Deputy Commissioner Wise seeking reasons for his decision on Mr Tran's EMD application.[30] Access Law says it sent a further request for written reasons for the decision relating to Mr Tran by email on 9 May 2017.

89 On 9 May 2017, Access Law wrote to Corrections Victoria seeking information about Mr Chang's eligibility for EMD. That enquiry was also treated as an application under section 58E of the Corrections Act.[31]

90 Further follow up emails as to reasons for decision regarding Mr Tran were sent on 30 May 2017 and 16 June 2017.[32]

91 On 4 July 2017, Access Law sent an email to Deputy Commissioner Wise seeking written reasons for decision in respect of Mr Tran and an explanation as to why a decision had not been made in respect of Mr Chang.[33] The letter stated that, should a response not be received by a specified date, legal proceedings would be commenced.

92 On 31 July 2017, an Originating Motion for Judicial Review was filed in the Supreme Court on behalf of Mr Tran and Mr Chang.[34] Mr Tran sought orders that a statement of reasons be provided or that the decision refusing EMD be quashed or be made according to law. Mr Chang sought orders that a decision be made about his application for EMD.

93 On 31 July 2017, Deputy Commissioner Wise provided written reasons for his decision to refuse Mr Tran's application for EMD.[35]

94 On 1 August 2017, Deputy Commissioner Wise made a decision to refuse Mr Chang's application for EMD and provided reasons.[36]

Mr Kheir's EMD application and Supreme Court proceedings

95 Another critical part of the background to these proceedings are Supreme Court proceedings concerning an application for EMD relating to the 2015 riots made by another prisoner, Mr Ali Kheir. At all relevant times, Mr Kheir was represented by Access Law, the same solicitors as those representing the applicants in these proceedings and in respect of their EMD applications.

96 Mr Kheir's application for EMD was rejected by the Commissioner (as delegate of the Secretary) on 15 September 2017. In giving her decision the Commissioner apparently said, amongst other things:

As a general principle, I consider it inappropriate to grant any prisoner [EMD] when prisoners have created the emergency.

97 Mr Kheir commenced judicial review proceedings and, on 11 May 2018, the Supreme Court made orders quashing the decision and ordering that it be remitted to a delegate 'who, if possible, has had no previous involvement with that application' (the First Kheir Proceeding).[37]

98 When no replacement delegate had been appointed by early October 2018, Mr Kheir commenced a further Supreme Court proceeding as to the failure to make the appointment or decide his EMD application (the Second Keir Proceeding).

99 When a delegate was appointed on 23 October 2018 (being Mr Neil Robertson),[38] Mr Kheir withdrew that Second Proceeding other than as to an application for costs.

100 It is convenient to now mention the decision on the costs application although it was not given until after other relevant events had taken place. Richards J heard the costs application and handed down her decision on 19 February 2019 (Kheir Costs Decision).[39] When giving her decision, her Honour made critical remarks about the manner in which the DJCS attended to compliance with the orders to remit, particularly concerning a five month delay in appointing Mr Robertson as delegate.[40]

Reconsideration of the applicants' EMD applications

101 Returning to the status of the applicants' EMD applications, on 29 November 2017, consent orders were made in the judicial review proceedings brought by Mr Tran and Mr Chang. The orders quashed Deputy Commissioner Wise's decisions and remitted them for fresh consideration.

102 On 6 July 2018, eight months after the Supreme Court's remittal decision, Access Law sent submissions on Mr Tran's application for EMD to Corrections Victoria.[41]

103 On 13 July 2018, Access Law sent submissions on Mr Chang's application for EMD.[42]

104 The applicants say that, between August and September 2018, Access Law sent follow up correspondence as to the status of Mr Tran and Mr Chang's EMD applications. Copies of that correspondence were not before me.

105 On 24 September 2018, Commissioner Cassar wrote to Access Law in respect of the two applicants' EMD applications.[43] The letters had similar content. They commenced with an apology for the delay in responding. They noted submissions had not been provided as to how the applicants were impacted by the MRC related riots and invited such material to be provided so it could be made available to the decision-maker. The applicants were each provided with a chronology of relevant placements and transfers. The letters stated that the decision-maker would consider any human rights that were relevant in accordance with the Charter. The letters concluded saying:

The Secretary is expected to shortly determine who should receive his delegated powers to consider the application for [EMD] under section 58E of the [Corrections Act].

106 On 1 October 2018, Access Law responded in respect of both Mr Tran and Mr Chang. The letters referred to the chronology supplied by Commissioner Cassar and sought clarification of the placement and transfer information. The letters said that Access Law would await receipt of her reply and would then send further submissions.[44]

107 It appears that Commissioner Cassar replied soon after, on 5 October 2018, and that letter prompted further replies from Access Law on 8 and 19 October 2018. The letters to Commissioner Cassar asked for additional clarification of factual matters. Both letters said that Access Law would be better placed to obtain instructions from their clients once the additional information sought was available.[45]

108 On 11 October 2018, Commissioner Cassar responded correcting an entry in Mr Chang's chronology and providing additional information. An undated letter (presumed to have been sent at around the same time) provided additional information in respect of Mr Tran.[46]

109 I infer from the exchange of correspondence that by around mid-October 2018, nearly a year since the applications were remitted for reconsideration, the applicants had provided their complete submissions.

110 As described earlier, as no delegation appointing a decision-maker had been made by late September 2018, on 10 October 2018, the Second Kheir Proceeding was commenced.

111 On 23 October 2018, Mr Neil Robertson was appointed as a delegate of the Secretary to make decisions in respect of section 58E of the Corrections Act. While the delegation did not specify that Mr Robertson was to be the decision-maker for Mr Kheir, Mr Tran and Mr Chang, I was informed those applications were allocated to him. The applicants' solicitors were not notified of that matter.

112 On 20 December 2018, Mr Kheir's EMD application was refused after Mr Robertson found that, although there had been an emergency existing in the prison and that Mr Kheir had suffered disruption or deprivation, he was not satisfied that Mr Kheir met the requirement for good behaviour during the emergency.[47]

113 Mr Kheir applied to the Supreme Court for judicial review of Mr Robertson's decision (the Third Kheir Proceeding).

114 That application sought judicial review on grounds including apprehended bias and/or partiality. Mr Kheir submitted that Mr Robertson's communications with the Victorian Government Solicitor's Office (VGSO) and Corrections Victoria without copying his solicitors were 'irregular and inappropriate', and compromised Mr Robertson's independence. Mr Kheir also claimed that there had been a deliberate failure to comply with the order of T Forrest J in the First Kheir Proceeding contending that the Commissioner and the Secretary unlawfully delayed the consideration and determination of Mr Kheir's application.

115 On 26 June 2019, McDonald J gave his decision in the Third Kheir Proceeding, making orders dismissing Mr Kheir's application.[48]

116 The claims based on apprehended bias were dismissed.[49]

117 His Honour noted that delay of itself is not a ground of judicial review but also accepted that delay may lead to a lack of procedural fairness or a failure to provide a fair hearing contrary to the Charter. His Honour concluded that, even if the claim had been put as a denial of procedural fairness, it would have failed because the delay was explicable on the basis of finding an appropriate decision-maker who, in compliance with T Forrest J's order, had no previous involvement with Mr Kheir's EMD application.[50] That conclusion may be contrasted with the very critical comments made by Richards J about the delayed compliance with T Forrest J's order in the Kheir Costs Decision.

118 On the claim of unlawful delay, his Honour described without criticism the time frame from when T Forrest J made his orders (11 May 2018) to when Mr Robertson was appointed (23 October 2018) and then to the date the decision on Mr Kheir's application was decided (20 December 2018).[51]

119 McDonald J found that Mr Kheir had no entitlement to EMD under the Corrections Act - rather, section 58E conferred a discretion on the Secretary or their delegate to grant EMD and thereby reduce Mr Kheir's sentence or non-parole period.[52]

120 On 17 July 2019, Mr Kheir appealed McDonald J's decision. The appeal was heard by the Court of Appeal on 16 September 2019. The Court of Appeal refused leave to appeal on 16 October 2019.[53]

121 A month after the Court of Appeal made its orders, the Bill had been introduced.

The status of the applicants' EMD applications by late October 2019

122 As described earlier, while Mr Kheir's litigation was progressing, there were communications between the applicants' solicitors and the Commissioner about their EMD applications. It appears that, by mid-October 2018, the applicants had sent all of their supporting material to Corrections Victoria.

123 On 11 February 2019 (just days before the Kheir Costs Decision was handed down), Commissioner Cassar wrote to Access Law referring to both applicants. She apologised for the 'significant delay' in responding and referred to some factual matters relating to the applicants. The letter then said:[54]

Corrections Victoria will prepare submissions for the decision maker in both cases as was the case in Mr Kheir's application, and you in turn will receive copies of these submissions as part of that process. I understand that the decision maker will write to you shortly requesting that you also make submissions in support of the applications made by Messrs Tran and Chang.

124 On 8 March 2019, Access Law emailed Commissioner Cassar.[55] The author referred to Commissioner Cassar's letter dated 11 February 2019 and asked her to advise who the decision-maker would be in respect of the applicants' EMD applications and when that person would be writing to Access Law. There was no response by Commissioner Cassar.

125 On 31 October 2019, Deputy Commissioner Wise wrote to Access Law in respect of both applicants and said:

At the time that your clients made applications in 2018, Corrections Victoria was awaiting Mr Neil Robertson's (and later the Court of Appeal's) decision in the Kheir case before making a decision on your clients' applications. On 16 October 2019, the Court of Appeal dismissed Mr Kheir's application for leave to appeal.

Since Mr Robertson's decision, as you may be aware, the [Bill] has been introduced into Parliament. Clause 30 of the Bill proposes to amend the [Corrections Act] to exclude the application of EMDs in relation to the prison riot at the [MRC] in 2015, and clause 43(4) is a transitional provision that is also relevant to Mr Chang's and Mr Tran's applications.

If the Bill is passed by Parliament, it is expected that the amendments relating to EMDs will commence later this year, and will preclude your clients from eligibility for EMDs in this instance. If it is not passed, we will of course reconsider the two applications.

Please find enclosed a copy of the relevant parts of the Bill for your reference.

126 In submissions filed after the hearing,[56] the respondents conceeded that, although the applicants and Mr Kheir had been represented by the same solicitors, the solicitors had not been expressly informed that the applicants' EMD applications had been put on hold pending finalisation of that of Mr Kheir (which led to proceedings in the Supreme Court and Court of Appeal over the period May 2018 to October 2019).

127 As I read it, the intention was that the EMD applications would not be considered further at all, unless the Bill was not passed.

128 On 1 November 2019, the applicants' solicitors wrote to the Secretary proposing that the EMD applications be considered urgently given the time since they had been made, and given at the time, section 58E remained in its unamended form.[57]

129 A response was sent on 5 December 2019, noting that the Bill had been passed on 14 November 2019 and so there was no power for the Secretary to consider the applicants' applications for EMD further.

130 Having considered the timeline of events and dealings between the applicants' solicitors and Corrections Victoria and accepting there was no express notice that the applications were on hold, the relevant period of delay appears to have commenced in mid to late October 2018 (when the applicants had supplied all of their materials and Mr Robertson was appointed as delegate) and 13 November 2019, the day before section 58E of the Corrections Act was amended.

131 The applicants called no witnesses but rather relied on the documents relevant to their (and Mr Kheir's) EMD applications and on their written and oral submissions. The respondents called three witnesses, each of whom adopted the witness statements made before the hearing. They were each cross-examined.

132 The respondents' witnesses gave evidence relevant to the application of sections 28 and 32 of the FOI Act and the applicants' claim any privilege under section 32 had been lost.

133 OCPC relied on evidence given by Ms Farnan. She commenced in the role of Chief Parliamentary Counsel on 18 January 2017. Ms Farnan previously held the position of Second Parliamentary Counsel in the OCPC.

134 In a 17 May 2021 witness statement[58] and in her oral evidence before me, Ms Farnan confirmed that, in her role as the Chief Parliamentary Counsel, she is responsible for the overall running of OCPC. She holds a Bachelor of Arts and a Bachelor of Laws with Honours. She is admitted as a legal practitioner in Victoria and, since commencing in her role with the OCPC, she has held a current practising certificate.

135 As to the operations of the OCPC, she stated the following:

• The OCPC came into existence in 1879;
• At all relevant times, it has been an administrative office attached to the DPC, but is administratively separate from DPC. It has around 47 staff members, approximately 20 of whom are lawyers; and
• The drafting of legislation by OCPC occurs on instructions from instructing departments and is undertaken by lawyers in OCPC, all of whom are required to hold a practising certificate.

136 Relevant to this proceeding, Ms Farnan described the OCPC's function as drafting all government Bills and House amendments for the Victorian Parliament. She stated that the standard process of planning and drafting legislation involves the following key steps:

• OCPC receives draft drafting instructions from the sponsoring agency. The purpose of this is for OCPC to comment on, and formally settle, those instructions;
• Once settled, those instructions go to Cabinet for approval in principle;
• Once Cabinet approval in principle is given, OCPC commences the drafting of the Bill; and
• Once drafted, the Bill goes to Cabinet for final approval.

137 Her evidence was that the standard process she had described is generally followed, but it will be adapted when necessary. Ms Farnan gave an example of when the process may be adapted. As it was her evidence that did not apply to the Bill, there is no need to say more about alternative processes.

138 Ms Farnan stated that, from OCPC's perspective, the process of planning and drafting legislation usually takes around three to six months.

139 As to the Bill, Ms Farnan stated she had some involvement with the making of it but not specifically in respect of clause 30 which amended section 58E to include subsection (3).

140 Ms Farnan confirmed there was no letter from the Premier to the Chief Parliamentary Counsel with respect to clause 30 of the 2019 Bill.

141 She stated she did not recall anything to suggest that there were communications between the DJCS and the OCPC relating to any deliberate delay of consideration of EMD applications. In cross-examination, Ms Farnan was asked whether it would not be out of the bounds of possibility that there might have been communications of the kind mentioned that she had forgotten. Ms Farnan agreed she might forget something but she had no recall of any such communications.

18. OCPC treats all correspondence in relation to Bills as confidential and subject to legal professional privilege. OCPC will only ever communicate with the relevant sponsoring agency in relation to a Bill and, to the extent necessary, with Cabinet and DPC. OCPC would not otherwise disclose the contents of drafting instructions, Cabinet documents or communications with a sponsoring agency in relation to a Bill. This is without exception.

143 As to that statement, Ms Farnan was asked in cross-examination why she had referred to how documents are treated rather than what they are. Ms Farnan stated that the documents were confidential and amounted to legal advice. She explained she had not purported to say what the law was in that paragraph of her witness statement.

144 Ms Farnan stated that she was aware of the FOI Act requests made by the applicants. She then said:

20. The nature of the documents described in the requests are:

20.1 the draft drafting instructions that are provided to OCPC for advice;

20.2 communications between OCPC and the sponsoring agency, here DJCS;

20.3 OCPC's advice to DJCS on whether or not the drafting instructions are adequate for the preparation of a first draft of the Bill;

20.4 the submissions and accompanying documents as lodged with the Cabinet Office, which are considered by Cabinet; and

20.5 deliberations by Cabinet in relation to the Bill.

21. The requests refer to specific categories of documents. For example, they refer to correspondence, notes and other documents exchanged between Members of Parliament and DPC/OCPC. can confirm that no such documents exist. They also refer to correspondence, notes and other documents exchanged between the [VGSO] and DPC/OCPC. Again, I can confirm that no such documents exist.

22. In my opinion, all of the documents that would be responsive to the requests were created for the dominant purpose of OCPC providing legal advice to DJCS in relation to the 2019 Bill and privilege in them has not been waived.

145 In response to questions put in cross-examination about her review of the OCPC file, Ms Farnan confirmed that she had reviewed the whole of that file in respect of the Bill (which is contained in electronic form) prior to making her statement and so she confirmed the assertions contained in her statement were true. When asked whether she had read the file 'carefully', she confirmed she had done so. She was asked if there were text messages regarding the Bill. She replied in terms which indicated she had not seen any text messages and that it would be unusual for there to be communications in that form.

Ms Edwards - Associate Deputy Secretary, Policy, Strategy and Offender Outcomes, Corrections and Justice Services Group

146 Ms Edwards was called on behalf of the DJCS. She made a witness statement dated 18 May 2021 which she adopted as true and correct, after clarifying her current role which is that stated above.

147 Prior to taking on her current role, from August 2019, Ms Edwards held the role of Executive Director, Policy, Strategy and Service Design Division (Division), Corrections and Justice Services Group, at the DCJS. As part of that former role, Ms Edwards supervised and managed teams which worked on policy, strategy and service design including in respect of legal policy.

148 Ms Edwards has held other roles in government, including within the DPC (2005-2009 and 2011-2019) and the Department of Health and Human Services (2016). She holds a Bachelor of Laws and a Graduate Diploma in Legal Practice.

149 In a witness statement made on 18 May 2021,[59] Ms Edwards gave the history of Corrections Victoria, including that it was established on 1 July 2003 as a business unit within the then Department of Justice and Regulation.

150 She explained that, amongst other things, Corrections Victoria set strategy, policy and standards for the management of the State's system of correctional facilities. During the period of time relevant to the applicants' FOI Act requests, the Legal Policy Corrections Victoria Team (LPCV Team) was a part of Corrections Victoria.[60] That team was responsible for both the provision of legal advice to Corrections Victoria, and the development of legal policy for Corrections Victoria. Ms Edwards stated that 'most' members of the LPCV Team held practising certificates, including the manager of the team.

151 Ms Edwards gave evidence that she was involved in the latter stages of the making of the Bill after assuming the role of Executive Director of the Division on 18 August 2019.

The then LPCV Team was involved with the planning, development and drafting of the Bill, which was headed by the then Manager Legal Policy Corrections Victoria. I am aware that the LPCV Team sought legal advice with respect to the 2019 Bill prior to my commencement in the role.

153 Ms Edwards' evidence was that, as at 2019, the operational area that received and processed the applications for EMD was, like the LPCV Team, within Corrections Victoria. I understood though that those who decided EMD applications were separate from the LPCV. That position is consistent with other evidence before me.

154 Ms Edwards stated that she was aware that the applicants made applications for EMD as a result of a riot at the MRC on 30 June 2015 and 1 July 2015. She had been informed that, since those events, there have been in excess of 1,800 applications for EMD made that related to the riot.

155 In cross-examination, Ms Edwards was asked about her specific knowledge of the development of the Bill. She stated she did not have personal knowledge of that but knew the process. She was asked who would have that specific knowledge. Ms Edwards said that was Cabinet-in-Confidence information as it went to the deliberations of Cabinet. Ms Edwards was asked when the planning of the Bill commenced. Ms Edwards could not identify exactly when her involvement commenced and, while she had some information as to when the processes commenced, that was also said to be Cabinet-in-Confidence. Ms Edwards confirmed she had been able to access materials relating to the Bill which were created before she commenced.

156 Ms Edwards was asked whether she was aware of any involvement between the applicants' solicitors, Access Law, and the DJCS - she said she had no personal involvement in those matters.

157 Ms Edwards was aware of the applicants' FOI Act requests for access relating to the planning, development and drafting of clause 30 of the Bill. She said:

17. These documents would contain confidential communications between the LPCV Team and the [OCPC] in relation to clause 30 of the . . . [Bill], including the drafting instructions, for the purpose of obtaining legal advice.

18. I am aware that they contain briefings for the Minister for Corrections with respect to approval in principle of the drafting instructions and approval of the . . . Bill, being matters considered by Cabinet.

19. I am also aware that they contain requests for, and the provision of, legal advice between the LPCV Team and the [VGSO]. Those communications were, and remain, confidential.

20. There were no amendments proposed by Members of Parliament with respect to clause 30 of the . . . Bill so I do not expect there would be any documents between DJCS and other Ministers.

21. Because the request relates to the development of a Bill, in my opinion, all of the documents that would be responsive to the requests would either be the subject of deliberations by Cabinet or confidential communications with respect to legal advice where privilege in them has not been waived.

158 Ms Edwards was asked about her use of the word 'would' in paragraph 17. She stated that communications relating to engagement with the OCPC are always confidential in her experience.

159 Ms Edwards was asked whether her opinion that the documents the subject of the access request would be privileged was correct - she stated it was correct. Ms Edwards was then asked whether that was 'really' correct and about her legal qualifications. Those additional questions were entirely unnecessary given Ms Edwards' earlier evidence and ample experience.

160 Deputy Commissioner Melissa Westin was called by the DJCS. She made a witness statement dated 7 July 2021 which annexed several of the documents mentioned in the chronology of events, including as to the applicants' EMD applications and outcomes, those of Mr Kheir and the various legal proceedings mentioned above.[61] She also made a second witness statement dated 5 August 2021 that clarified one matter in her first statement. The clarification is not directly material to the issues to be decided.[62]

161 At the hearing, after clarifying a period during which she was absent (in 2017), Deputy Commissioner Westin confirmed the witness statements were true and correct.

162 Deputy Commissioner Westin's current role is within Custodial Operations in Corrections Victoria. She has been in that role since August 2020 and prior was the Assistant Commissioner, Security and Intelligence Division for three years.

163 At the time of the MRC riot in 2015, Deputy Commissioner Westin was the General Manager of the MRC. She stated she had no personal involvement with the applicants' EMD applications and the executive staff who worked directly on them are no longer at Corrections Victoria. She made her statement based on her direct experience and knowledge from her roles in Corrections Victoria.

164 She said the following regarding the EMD applications made to Corrections Victoria:

• There were over 1,800 applications for EMD as a result of the MRC riot. The first of those applications were received in 2015;
• The majority of EMD applications went through her office for a recommendation prior to being sent to Corrections Victoria head office for a decision;
• Outside of the applications arising from the MRC riot or the impact of COVID-19 on prison conditions, applications for EMD are sporadic and amount to a handful per year; and
• Applications other than those relating to the riot were usually addressed within a few weeks.

165 Deputy Commissioner Westin's statements referred to the appointment of a delegate to decide the applicants' EMD applications after May 2017. She stated that it took time to find a delegate who had no previous involvement with EMD applications relating to the riot and who Access Law was 'happy with'. She recorded that Access Law had rejected the suggestion that then newly appointed Commissioner Cassar be the delegate.[63]

166 In cross-examination, Deputy Commissioner Westin was asked whether she was aware that, in 2015, the then Commissioner of Corrections said no prisoner involved in the MRC riot would be granted EMD. Deputy Commissioner Westin said she was aware of that statement. She was asked whether that became a Custodial Operations policy. Deputy Commissioner Westin did not believe it was enshrined in policy but was aware it became enshrined in legislation (via the Bill). She was asked if she was aware of how that came about. Deputy Commissioner Westin replied that she was not part of that process and was not involved in the 'intricacies' of the Bill.

167 The Deputy Commissioner's evidence was that, as at 2018 and 2019, she was not aware of the delays in dealing with the applicants' EMD applications or how the various letters about those applications came to be written. That evidence included the letters sent in September 2018 and February 2019 indicating decisions on those EMD applications would be made soon.

Findings on the evidence relevant to section 25A(5) of the FOI Act

168 I make the following findings having considered the submissions at the hearing and having reviewed the parties' written submissions.

169 Noting the very limited cross-examination of each witness (which did not dilute or otherwise alter their evidence), their significant experience and, in the case of Ms Farnan and Ms Edwards, their legal qualifications, I accept the evidence of each witness as contained in their witness statements and their oral evidence before me.

• I accept the evidence given by each of Ms Farnan and Ms Edwards as to the processes employed by OCPC and the DJCS in respect to the proposal, development and submission of draft legislation to DPC. I accept Ms Farnan's detailed evidence about those processes and her confirmation they were applied to the Bill;
• I find Ms Farnan's qualifications and past experience mean she was well placed to express an opinion about the documents described in the access requests to the OCPC. Accordingly, I accept her evidence that documents within those requests would have been created for the dominant purpose of the OCPC providing legal advice to DJCS; and
• I find Ms Edwards' qualifications and past experience well equipped her to express the opinion that, because the access requests to the DJCS concerned the development of a Bill, all documents would either be the subject of deliberations by Cabinet or confidential communications with respect to legal advice. That evidence is accepted.

171 On the evidence given by Ms Farnan and Ms Edwards and having regard to the decision in Betfair, I find that:

• At the time the Bill was planned and throughout its development process, the DJCS was the instructing party (or client);
• The LPCV Team (which was within Corrections Victoria and so the DJCS) provided legal advice to Corrections Victoria and engaged in discussions with the OCPC about the Bill;
• The LPCV Team made requests for and received legal advice from the VGSO about the Bill;
• At all relevant times, the OCPC was providing legal advice to the DJCS when it:
  • Received instructions from the DJCS in respect of the Bill;
  • Settled the instructions and submitted those to Cabinet for approval in principle;
  • Drafted the Bill; and
  • Once drafted, the Bill was submitted to Cabinet for approval; and
• Documents which were prepared for the purpose of submission to Cabinet in order to obtain in principle and final approval were subject to Cabinet confidentiality.

172 I now deal with the submissions concerning whether legal professional privilege was lost.

Whether an exception to legal professional privilege applies and/or section 50(4) of the FOI Act arises

173 As foreshadowed earlier, the applicants contended that any legal professional privilege (under section 32 of the FOI Act) was lost as a result of alleged misconduct within the DJCS, including by the Secretary, the Commissioner and the Deputy Commissioner.

174 Those same broad contentions were relied on to say the public interest override contained in section 50(4) of the FOI Act would arise in respect of any documents which fell within the terms of the access requests.

175 The respondents entirely dispute the applicants' position.

176 I have already summarised the law relevant to the contention that legal professional privilege may be lost in respect of communications between a lawyer and client made for the purpose of guiding or assisting in the commission of a fraud or a criminal offence.

The applicants' contentions as to abuse of power and breach of statutory duty

177 The following comes from the applicants' statement of position dated 23 December 2020 (footnotes omitted). The Kheir decision mentioned is Richard J's Kheir Costs Decision.

36. The Commissioner and [the DJCS's] conduct in respect of the applications is worse than what occurred in Kheir . . .

37. At [25] of her reasons for decision in Kheir, Her Honour Justice Richards said:

'It is a matter of dismay that the Secretary took more than five months to act on the Court's order of 11 May 2018, and then only after Mr Kheir had commenced a further proceeding. The Secretary to the Department of Justice and Regulation has a central role in upholding the rule of law in Victoria, and should give effect to a final order of this Court as a matter of course. The delay in doing so here called, at the very least, for a full and transparent explanation'.

38. Although the appointment of a decision maker (delegate) was not the subject of a formal Order in the circumstances of the Applicants, the delay of more than 1 year (as opposed to 5 months) since their applications were lodged does not in the Applicants' submission change the fundamental character of the obligation to provide 'at the very least . . . a full and transparent explanation' for the delay, or the Secretary's 'central role in upholding the rule of law in Victoria'.

39. That obligation is made especially important in light of the [DJCS's] position as a model litigant, which includes an obligation to assess applications for EMDs 'promptly and not cause unnecessary delay'.

40. In light of its proximity in time to the decision in Kheir, the Commissioner and [the DJCS'] conduct may be said to be in reckless disregard, if not defiance, of Richards J's criticisms in Kheir. Thus seen, the conduct was egregious.

41. It follows, from the above, that both the Commissioner and/or the Secretary and/or, the Commissioner's delegates and/or her agents had deliberately or recklessly delayed and refused to make a decision on the Applicant[s'] applications so as to render them futile upon the [Bill] coming into effect. This amounts to a grave abuse of power.

42. It is apparent that some communications must have occurred between the parties and other relevant parties that evidence the initiation or furtherance of this abuse. Those are the documents sought, but which the Respondents claim to be exempt.

43. [Reference was made to Gibbs CJ's reasons in Kearney.]

44. If, upon review, the materials show with 'sufficient probability' that there has been a 'deliberate abuse of statutory power' in a way contrary to the public interest, an exception exists such as to override the exemption that has been claimed.

45. It is evident, from the conduct of the Commissioner and the Secretary, and/or her delegates and agents, that there has been a deliberate abuse of statutory power that rises beyond a 'mere charge'. The events show this 'in clear and definite terms' and with reference to prima facie evidence that there is some foundation in fact and that there is 'sufficient probability of its truth to make it right to disallow the privilege of professional communications'.

46. For the reasons aforementioned and below, the circumstances are clearly such that they 'sufficiently point to the bona fides and credibility of the allegation' that there has been a deliberate abuse of a statutory power or duty.

47. The applications were validly made. That much was clear by the Commissioner's acknowledgement. What is opaque are the circumstances and reasons as to why the [DJCS] and Corrections Victoria:

(a) failed to adhere to the principle that 'in the absence of statutory language to the contrary, a grant of jurisdiction ordinarily carries with it a duty to exercise it' in not appointing and refusing to appoint decision makers to consider the applications, despite the Applicant[s'] urging for it to do so before the [Bill] came into effect; and

(b) decided to halt consideration of the applications without prior notice or consultation with the Applicants.

48. It is also unclear what involvement the Commissioner, the Secretary or their delegates and/or her agents had in the drafting of the Bill.

49. The Tribunal does not have to make a determination or provide 'a view as to the probable outcome' of any litigation on whether a cause of action has or can be made out (e.g. whether the tort of misfeasance in public office has occurred).

50. It only has to determine whether documents claimed to be subject to legal professional privilege should remain exempt, in light of the contextual history and background of the Applicants and if where it is satisfied to do so, make a 'prima facie finding' on whether there is 'sufficient probability' of the contention that the documents show a deliberate abuse of a statutory power or duty - that is, one with an 'intent of frustrating legitimate claims'.

51. Where the documents show, prima facie or with sufficient probability, that a deliberate abuse of statutory power has taken place, so as to directly or incidentally frustrate the Applicants' legitimate applications for EMDs, the privilege should be displaced to the extent that it protects from disclosure the deliberate abuse in question.

178 In the applicants' submissions in reply dated 7 June 2021, they contended that Corrections Victoria had caused protracted delays and obfuscated. The submissions asserted:

(a) Despite emails from the applicants' solicitors, Access Law, sent on 13 August 2018, 22 August 2018, 27 August 2018, 6 September 2018, 13 September 2018 and 19 September 2018, no response to the applications was made until 24 September 2018, when Commissioner Cassar advised that decision-makers would be appointed to consider the applications 'shortly';

(b) Further letters were sent to Commissioner Cassar by Access Law on 8 November 2018 and 30 November 2018 but no response was received until 11 February 2019, when Commissioner Cassar 'admitted' that there had been a 'significant delay' and repeated her assurance that the decision-makers would 'shortly' write to Access Law to request submissions;

(c) On 8 March 2019, Access Law wrote again to Commissioner Cassar asking whether the decision-makers had been appointed, who they were and when they would require submissions from Access Law; and

(d) For reasons unknown to the applicants, and not provided by the DJCS, no response was ever received.

179 The applicants then referred to Deputy Commissioner Wise's 31 October 2019 letter.

180 The applicants submitted that it appeared 'clear' that a decision was postponed while steps were 'put in train to remove the applicants' eligibility for EMDs'. The applicants asked rhetorically whether that was a proper exercise of statutory power or whether it was a deliberate refusal by a government authority to comply with its statutory obligations according to law.

181 The applicants referred to Richards J's comments about the concerning five month delay in Mr Robertson being appointed as delegate in Mr Kheir's case and noting section 58E of the Corrections Act conferred 'rights and privileges on a prisoner in return for good behaviour'. Her Honour noted that, as such, the provision was to be read liberally and beneficially towards the prisoner.

182 The applicants then submitted (paragraphs 15 to 23 - footnotes omitted -bold indicates the applicants' emphasis):

In the present case, those rights were deliberately flouted by the [Secretary] and her Department, who deliberately refrained from considering the applications, while deliberately misleading the applicants into the belief that they would be 'shortly' considered and thus inducing them to refrain from seeking prerogative relief.

This behaviour clearly ignored the clear views expressed by Richards J in Kheir that the [Secretary] and her Department had 'a central role in upholding the rule of law in Victoria' in view of 'the Secretary's position as a model litigant.'

The legislation imposed a duty on the [Secretary] and her Department to act on the applications, and to act with reasonable promptitude. That is especially so where the applicants' liberty is the subject affected. Not only did the [Secretary] not act promptly, but the [Secretary], the Commissioner and Deputy Commissioner and their lawyers deliberately and consciously ignored the pleas of the applicants' solicitors to determine the applications while the jurisdiction still remained live.

It is clear the replies to Access Law were not honest but were replies designed to obfuscate the [Secretary's] real intent. The [Secretary] deliberately delayed or caused to be delayed the considering of the applicants' applications, while stalling their requests and pressing on with an amendment of the [Corrections Act] to defeat their claims.

Even the respondents' themselves acknowledge approvingly at [12] of their statement of legal contentions, that one of the purposes of the Bill was 'e_xcluding the application of [EMD] in relation to the riot'_.

What the respondents fail to comprehend at [51.2] of their submissions is that the deliberate abuse of statutory of power that gives rise to an exemption or denial of legal professional privilege in this case arises not from delay alone, but from the conscious and deliberate refusal to exercise the jurisdiction to consider the applications for EMDs.

Evidence of the failure of the respondents to consider the applications in the context of the imminent passage of the Bill despite the urging of the applicants' solicitors is sufficient to ground a finding that the failure to exercise the statutory power constitutes an abuse of that power.

That failure goes beyond the 'mere charge' to which the respondents refer at [44.3] of their submissions. The refusals which ground the abuse clearly establish 'sufficient probability of its truth to make it right to disallow the privilege of professional communications'.

Here, the legislation conferred a statutory power, and the [Secretary] and her Department consciously and deliberately failed to carry out their duty to exercise that power, despite the 's_tring of polite inquiries'_ that had been made by the applicants' solicitors of [the Secretary] and her Department requesting that the power be exercised according to law.

183 I deal with the elements of the applicants' submissions individually and in the context of these proceedings: so, while the applicants' submissions contain very broad ranging and serious allegations, my findings are limited to whether the evidence supports a finding that the privilege protected by section 32 of the FOI Act has been lost.

184 As is apparent from the applicants' submissions, significant reliance is placed on the fact of the delay as well as suggested motivations for that delay.

185 As demonstrated by the chronology, the making of the applicants' EMD applications and the engagement with the Secretary and Corrections Victoria about them was closely linked to that of Mr Kheir.

186 Mr Tran's application was treated as having been made on 28 April 2017 (nearly two years after the riot) and a decision was made on 5 May 2017. Mr Chang's application was treated as having been made on 9 May 2017.

187 The consent orders remitting the applications to be reconsidered were made in November 2017. As described above, by around mid-October 2018, nearly a year later, the applicants had submitted their materials having gone back and forth with the Commissioner about a range of matters.

188 As set out above, Commissioner Cassar had written a letter dated 24 September 2018 saying that the delegation of decision-making powers was to be made 'shortly' and in fact that delegation was made on 23 October 2018. While it might be open to say that a delegate ought to have been appointed in the meantime, I do not accept the proposition that the delay in Mr Robertson being appointed was improper.

189 The applicants placed significant reliance on Richard J's critical comments as to the appointment of Mr Robertson in the Kheir Costs Decision and suggest the same may be made in respect of the applicants' circumstances. For the following reasons, in my view that reliance was misplaced.

190 As summarised above, on the full hearing of the judicial review hearing, McDonald J found the delay was explicable. He made no findings of fraud or other misconduct in the appointment of a delegate or the overall handling of Mr Kheir's EMD application.

191 The Court of Appeal did not disturb McDonald J's findings on those issues.

192 More than that, Mr Kheir's counsel (Mr Nash) elected not to pursue those matters before the Court of Appeal.[64]

193 In any event, even if a delegate had been appointed earlier, the applicants' submissions were not final until mid-October 2018 and so consideration of those submissions could not have commenced earlier. Also relevant was Deputy Commissioner Westin's evidence that in the usual course only a handful of EMD applications were made each year and they were dealt with in a matter of weeks. The 1,800 EMD applications received from 2015 clearly represented a significant deviation from the usual.

194 The chronology set out above and the correspondence from Corrections Victoria all indicate that a decision was made to consider Mr Kheir's application first. That appears to be confirmed by reference to Commissioner Cassar's letter dated 11 February 2019 in which she apologised for the significant delay and then explained the process which was to be the same as that followed in Mr Kheir's case.

195 On the material before me, it appears quite clear that, once Mr Robertson made his decision on Mr Kheir's EMD application and judicial review proceedings were commenced (through Access Law), the applicants' EMD applications were put on hold. The applicants' objected to that reasoning on the basis the facts underpinning Mr Kehir's EMD application and those of the applicants were different and there may have concerned different arguments.

196 Whether that was the preferable course to take might be open to debate but, on the face of the material available to me, that seems to be the most probable reason why decisions on the applicants EMD applications had not been made as at October 2019, when the Court of Appeals' decision was handed down.

197 I base that view on Deputy Commissioner Wise's letter dated 31 October 2019 which stated that Corrections Victoria was awaiting Mr Robertson's decision on Mr Kheir's application (and the subsequent appeals), all of which were not completed until October 2019. It is also consistent with the course of events.

198 Even accepting that the applicants' solicitors, Access Law, were unaware of the fact Mr Robertson (and not some other delegate) was to decide the applicants' applications and that Corrections Victoria had decided to await the resolution of Mr Kheir's application (and so perhaps denied procedural fairness), that is not of itself a basis to find an abuse of power sufficient to set aside legal professional privilege in relation to the documents in dispute before me.

Dishonest communications and deliberate obfuscation?

199 The applicants submitted that it was 'clear' that communications from the Secretary and the DJCS sent to Access Law were not honest but were 'designed to obfuscate' the Secretary's real intent. That was said to be to deliberately delay or cause to be delayed the considering of the applicants' applications, while stalling their requests and pressing on with an amendment of the Corrections Act to defeat their claims. It was also contended that, as a consequence of those communications, the applicants were induced to refrain from seeking prerogative relief.

200 Noting the letters in issue were written by Commissioner Cassar rather than the Secretary and the absence of any evidence that Commissioner Cassar was involved in the preparation of the Bill, it is not clear to me how it could be said on the evidence before me that it was 'clear' she or the Secretary were involved in the behaviour described.

201 While I accept answering that question is part of the purpose of the FOI Act access requests, it is not sufficient to assert such matters as a basis on which to claim that legal professional privilege has been lost such that section 32 of the FOI Act does not apply. That is particularly so when documents of that kind do not fall within the nature of the access requests before me.

202 I have some difficulty with the proposition that the applicants were induced not to seek prerogative relief in the Supreme Court due to the letters sent by the Commissioner in the period October 2018 to October 2019. The applicants' solicitors were better placed than most to have an understanding of issues of delay in the DJCS decision-making processes about EMD. They had shown they were very capable of setting deadlines for progress and commencing proceedings where they concluded their clients' interests were at risk. Nevertheless, those are not matters I am required to make findings about.

Failure to make a decision before the Bill was passed

203 As set out earlier, after the applicants received Deputy Commissioner Wise's letter dated 31 October 2019, they urged the Secretary to make a decision on the applicants' EMD applications before the amendment to section 58E was passed.

204 At the hearing, the applicants' counsel, Mr Nash, referred me to decisions which considered the appropriateness of a court adjourning a matter when legislation was soon to be passed which would affect the relevant proceeding.[65] He contended that an analogy could be drawn with any decision Corrections Victoria made to delay deciding his clients' applications until after Mr Kheir's matters were final and/or the Bill had been passed.

205 Even if that comparison was appropriate and warranted, the fact a decision was delayed does not render it a breach of statutory duty or some other abuse. I noted that in Meggitt Overseas Limited (Now known as Wallaby Grip Limited) and Ors v Grdovic,[66] Mason P canvassed a wide range of cases where adjournment orders had been made, including some which were found to be appropriate, thereby emphasising the discretionary nature of the adjournment power. That review demonstrated that there is no universal rule that an adjournment was inappropriate when legislation which might affect a litigant's rights was pending.

206 Mason P quoted the following passage from the House of Lords decision in Willow Wren Canal Carrying Co Limited v British Transport Commission:[67]

There is in my judgment no rule of law that impending legislative change is never a material consideration in the exercise of the court's powers and discretions. Everything it seems to me turns upon the subject matter and the relevance of the pending legislation or possibility of change to the issues which the court has before it.

207 Mason P then commented that the above statement was perhaps unexceptionable having regard to the way it is expressed, but 'the passage cannot be inverted into a statement to the effect that it is proper to take into account impending legislative change in support of a contested adjournment'. That showed the particular circumstances will be central to whether a court should allow an application for an adjournment.

208 Returning to the applicants' submission, the cases referred to did not support a conclusion that it would of itself be a breach of statutory duty or abuse (such that legal professional privilege would be lost) for an administrative decision-maker to delay undertaking their task in circumstances where the provision containing the very discretion on which the decision would turn was the subject of a bill already introduced to Parliament.

209 The applicants' submissions in reply noted that the respondents had not filed any witness statements or affidavit material as to the reason for not considering the applications at the time they were urged to do so or explaining the alleged misleading answers to the applicants' solicitors.[68] Having regard to the findings I have made below about the inherent or essential character of documents which were the subject of the access requests and the evidence that those people within OCPC and the DJCS involved in making the Bill were not also involved in the EMD decision-making, it is unsurprising no such evidence was produced.

210 In any event, theorising about the reasons for putting the applications on hold does not assist the applicants in these proceedings. That is because there is also no prima facie basis to find decisions the Commissioner, the Secretary or anyone else within the DJCS or Corrections Victoria made about the specific EMD applications were known to those at the OCPC and within the DJCS who were working on the Bill.

211 I reject the proposition that the failure of the respondents to consider the EMD applications in the context of the imminent passage of the Bill, despite the urging of the applicants' solicitors to do so, is sufficient to ground a finding that the failure to exercise the statutory power constituted an abuse.

212 Implicit in the applicants' submissions about delay is the presumption that, at the time the applications were made and at all times up to the Bill being passed, the applicants had a right to EMD. As noted earlier, McDonald J found there was no such right. His Honour also expressly rejected the proposition that Mr Kheir's liberty had been interfered with when the EMD application was delayed and rejected.[69] The same conclusions may be drawn in respect of the applicants.

213 There is no denying that the applicants lost something when the Bill was passed - they lost the right to have their applications considered. However, it is worth recalling that the Parliament passed the Bill after it was made perfectly clear in the Second Reading Speech and the Charter Statement that was the intention behind amending section 58E of the Corrections Act and that it was intended for the amendment would have a retrospective effect.

Collusion between those involved in the Bill and those deciding EMD applications

214 I have accepted Ms Edwards' evidence that those people within the DJCS involved with making the Bill (the LPCV Team) were not involved in the decision-making on EMD applications. Consistent with that evidence, Deputy Commissioner Westin gave unchallenged evidence that applications went to her office first for the purpose of recommendations and were then referred to Corrections Victoria for decision-making. There was no positive evidence elicited on cross-examination that there was an overlap in relevant personnel.

215 Taking the evidence together, there is nothing to prove or support the drawing of an inference that those people who were involved in assessing EMD applications after mid-late October 2018 (when the submissions stage of the applicants' applications had been completed) were also involved with the making of the Bill.

216 Equally, there is no support in the evidence for the applicants' proposition that there would be documents within the terms of the access requests which contain communications from the Secretary to the OCPC 'urging it to hasten its work so the eligibility of prisoners who had applied for EMD could be stultified'.[70]

217 On the question of timing of the Bill, although in her evidence Ms Edwards was not able to specify a date when work on the Bill commenced, her evidence indicated it was well underway by the time she took up the Deputy Secretary role in August 2019. McDonald J's decision, which was given in June 2019, only referred to the original form of section 58E and not the amendment. Noting Ms Farnan's evidence that the legislation drafting process usually takes three to six months and the Bill was introduced into Parliament in October 2019, I infer that process commenced in around April 2019 at earliest and in around July 2019 at latest.

218 Taking all of that into account, I accept the proposition that the dealings with the applicants' EMD applications was occurring at around the same time as preparation of the Bill. However, for the reasons given, that is as much as can be said about the links between the two functions given different offices and personnel were involved in each.

The possible involvement of the Commissioner in the drafting of the Bill

219 The applicants submitted that it was unclear what involvement the Commissioner, the Secretary and/or the Commissioner's delegates and/or her agents, their delegates and/or her agents had in the drafting of the Bill. I have dealt with some of those possibilities above.

220 There was no evidence that the Commissioner had any involvement in planning or drafting the Bill and so there is no evidence available which would support the drawing of an inference. In reaching that view, I rely on Ms Farnan's evidence that she had read the OCPC file and she had no memory that anyone had suggested that EMD applications were to be delayed until the Bill was ready to present to Parliament. I also rely on Ms Edwards' evidence about the different Departmental areas involved in the two tasks.

221 I again emphasise that the applicants did not seek documents about the decision-making on their individual EMD applications and so I have not made findings of fact about the detail of those decision-making processes. The access requests were for documents relating to the amendment of section 58E of the Corrections Act.

222 As is apparent, the applicants have not proven or produced evidence on which to base a prima facie finding there is a sufficient probability that the documents sought show a deliberate abuse of statutory power or duty. In particular, they have not proven that:

• When it came to the appointment of a delegate to decide the applicants' EMD applications there had been a 'reckless disregard, if not defiance' of Richards J's criticisms in the Kheir Costs Decision or that such alleged conduct was 'egregious';
• The Secretary and/or their delegates 'flouted' their statutory duty;
• The Secretary and/or their delegates were dishonest in their communications or deliberately misled the applicants about the status of the applicants' EMD applications;
• The decision to put the applicants' EMD applications on hold was designed to ensure the applications were defeated by the passing of the Bill;
• There was any collusion between the people who were involved in making the Bill and those whose duty it was to consider EMD applications. The latter people included Commissioner Cassar and Deputy Commissioner Wise; or
• There is a sufficient basis to conclude there was a probability that the delay in dealing with those applications was deliberate or otherwise improper such that it amounted to an abuse of a statutory duty.

223 For the same reasons, the applicants' submission that the exemption in section 32 of the FOI Act should be disregarded because the public interest requires disclosure[71] - or at least a proper search and decision - cannot be accepted.

224 Again, it is not necessary to consider the whole circumstances regarding the decision-making on EMD but to consider whether the public interest demands that the section 32 exemption not be applied to documents which fall within the scope of the three access requests. There is no basis for me to find that the documents would touch on the specific circumstances of the applicants or raise serious questions of concern, not just for them, but in the wider community.

225 The applicants have not demonstrated that any legal professional privilege in the documents the subject of the access requests would be lost due to impropriety, fraud or an abuse of a statutory duty.

The application of section 25A(5) of the FOI Act to the access requests

226 As stated earlier, the respondents refused the three requests for access on the basis of section 25A(5) of the FOI Act. In order for section 25A(5) to apply in respect of a particular access request, the respondents were required to satisfy me:

• As to the appropriate identification of the inherent or essential quality or character of the documents requested, based solely on the description in each access request;
• The documents, as described by the applicants, have the inherent or essential quality or character of being exempt and that, on the face of the access requests, all of the documents are exempt; and
• In circumstances where the applicants' have not said they wish to have edited copies, it is apparent from the nature of the documents as described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document.

227 Leaving the documents which are known not to exist to one side for now, I agree with the respondents' submission that the inherent or essential character or quality of the documents sought by the applicants is apparent from the face of each of the requests. While a range of documents are referred to in the requests and categories are suggested, the inherent or essential character of the documents described are documents that relate to the planning and drafting of the Bill.

228 In respect of the two requests to the OCPC, on the evidence of Ms Farnan and applying Betfair, I am satisfied that the inherent or essential character of the documents described is requests for and the provision of legal advice by the OCPC in the performance of its functions. To the extent that some documents were created with the intention that they would be submitted to Cabinet, those have the inherent or essential character of being subject to Cabinet confidentiality.

229 In respect of the two identical requests to the DJCS, on the evidence of Ms Edwards and on that of Ms Farnan as to how departments sponsor Bills, seek legal advice from the OCPC and submit Bills for in principle and final approval by Cabinet:

• The inherent or essential character of documents containing communications between the DJCS and the OCPC regarding the planning, development and drafting of the Bill is requests for and the provision of legal advice;
• The inherent or essential character of documents containing communications between the VGSO and the DJCS and/or OCPC and regarding the planning, development and drafting of the Bill is requests for and the provision of legal advice;
• The inherent or essential character of documents containing communications between the DJCS and DPC and any containing communications between the OCPC and DPC, in respect of the approval in principle and final approval of the Bill by Cabinet, is the provision of legal advice and/or subject to Cabinet confidentiality.

230 On the evidence of Ms Farnan and Ms Edwards and having regard to the decision in Betfair, all of the documents described in the three access requests the subject of these proceedings would be exempt under sections 28 and/or 32 of the FOI Act.

231 The third element of section 25A(5) concerns whether there is scope for providing edited copies. That obligation arises under section 25 which requires that access be given to an edited copy of the document with such deletions as are required to make the copy of the document not exempt. The obligation only arises where it is reasonably practicable to do so.

232 On the evidence before me, I am satisfied that the entire content of the documents described in the applicants' requests would be subject to the exemptions contained in sections 28 and/or 32 and so I find there would be no scope for providing edited copies.

233 In those circumstances, I find section 25A(5) of the FOI Act applies to the access requests which are the subject of proceedings Z741/2020, Z742/2020 and Z743/2020 and so it is appropriate to order that the Information Commissioner's three decisions be affirmed.

[1] The applicants' statement of position (Statement of Position) dated 23 December 2020, paragraph 3(b).

[2] Paragraph 7 of Carly Edwards' witness statement dated 18 May 2021 and adopted at the hearing before me as true and correct (Ms Edwards' Statement).

[3] Statement of Position, paragraph 41.

[4] The applicants' submissions in reply dated 7 June 2021 (Reply Submissions), paragraph 12.

[5] Statement of Position, paragraph 42.

[6] Reply Submissions, paragraphs 55 and 56.

[7] Knight v Corrections Victoria [2010] VSC 338.

[8] Statement of Position, paragraphs 33 to 35.

[9] Reply Submissions, paragraphs 57 to 60.

[10] [2020] VCAT 965 at paragraphs 16 to 23.

[11] Waterford v The Commonwealth of Australia [1987] HCA 25 and also see Philip Morris Limited and Prime Minister [2011] AATA 556 at paragraph 70.

[12] [2009] FCAFC 160.

[13] See Waterford v Commonwealth [1987] HCA 25.

[14] See Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610; and Workcover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502.

[16] [2013] VSC 541.

[17] [1985] HCA 60.

[19] [2019] NSWCATAD 255.

[20] [1997] ACTAAT 197.

[21] [1938] HCA 34.

[22] Email sent on 19 February 2020 - tab 3 of the section 49 materials filed on 28 January 2021.

[23] Email sent on 15 April 2020 - tab 5 of the section 49 materials filed on 28 January 2021.

[24] Tribunal Book, pages 197 to 200, witness statement made on 17 May 2021, paragraph 21 and her evidence in cross-examination that she had examined the complete electronic OCPC file 'carefully'.

[25] Tribunal Book, pages 201 to 204, witness statement made on 18 May 2021, paragraphs 18 to 20 and her evidence in cross-examination that she had examined some, but not all of the documents on the relevant file.

[26] Emails and documents filed with the Tribunal on 7 December 2021.

[27] Paragraph 15 of Ms Edwards' Statement.

[28] See attachment MW-1 to a witness statement made by Deputy Commissioner Westin on 7 July 2021 (Deputy Commissioner Westin's First Statement).

[29] Attachment MW-2 to Deputy Commissioner Westin's First Statement.

[30] Attachment MW-3 to Deputy Commissioner Westin's First Statement.

[31] Attachment MW-1 to Deputy Commissioner Westin's First Statement.

[32] Copy emails supplied to the Tribunal by the respondents on 7 December 2021.

[33] Copy email supplied to the Tribunal by the respondents on 7 December 2021.

[34] Copy supplied to the Tribunal by the respondents on 7 December 2021.

[35] Attachment MW-4 to Deputy Commissioner Westin's First Statement.

[36] Attachment MW-2 to Deputy Commissioner Westin's First Statement.

[37] Kheir v Secretary to the Department of Justice and Community Safety [2018] VSC 222 at paragraphs 41 and 42.

[38] Copy delegation supplied to the Tribunal by the respondents on 7 December 2021.

[39] Kheir v Secretary to the Department of Justice and Community Safety [2019] VSC 76.

[41] Attachment MW-5 to Deputy Commissioner Westin's First Statement.

[42] Attachment MW-5 to Deputy Commissioner Westin's First Statement.

[44] Copy letters supplied to the Tribunal by the respondents on 7 December 2021.

[45] Copy letters supplied to the Tribunal by the respondents on 7 December 2021.

[46] Copy letters supplied to the Tribunal by the respondents on 7 December 2021.

[47] See paragraph 9 of McDonald J's decision in Kheir v Robertson [2019] VSC 422.

[48] Kheir v Robertson [2019] VSC 422.

[53] Kheir v Robertson [2019] VSCA 229. I was informed that special leave to appeal to the High Court of Australia was refused given the Bill had been passed.

[55] Tribunal Book, page 175 and a further copy was supplied to the Tribunal by the applicants on 7 December 2021.

[56] Letter from solicitors for the respondents to the Principal Registrar dated 6 December 2021.

[57] Annexure E to the Applicant's Position Statement.

[60] As a result of a 2020 restructure, legal advice is now provided through the Office of the General Counsel for the whole of the DJCS - see paragraphs 8 and 9 of the 18 May 2021 witness statement.

[62] Tribunal Book, pages 1039 to 1040. As to the clarification made in the second witness statement, paragraph 11 of her first statement asserted that an internal review of the decision regarding Mr Tran was sought in July 2018. In her second statement Deputy Commissioner Westin clarified that, consistent with the chronology above, the decisions regarding the applicants were remitted by May 2017 consent orders in their judicial review proceeding. She stated that the July 2018 correspondence from Access Law was better described as containing submissions on how future decisions on the applicants' EMD applications should be made.

[63] Witness statement dated 7 July 2021, paragraph 15 and witness statement dated 5 August 2021, paragraph 6.

[65] Meggitt Overseas Limited (Now known as Wallaby Grip Limited) and Ors v Grdovic [1998] NSWSC 233; Geelong Football Club Ltd v Clifford [2002] VSCA 212; Sydney City Council v Ke-Su Investments Pty Limited (1985) 1 NSWLR 246.

[66] [1998] NSWSC 233.

[67] [1956] 1 All ER 567 at 569.

[68] Reply Submissions, paragraphs 29 and 39.

[71] In the sense discussed in Osland v Secretary to the Department of Justice [2010] HCA 24 per French CJ, Gummow and Bell JJ at paragraphs 12 to 14; Department of Premier & Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331 at 342 to 343; and XYZ v Victoria Police [2010] VCAT 255, paragraphs 575 ff.