The Tribunal decision
44 For the extensive reasons as published, the Tribunal affirmed the decision of the Information Commissioner in relation to documents 4, 9, 10 and 12 (relevantly that 4, 9 and 10 are exempt pursuant to s 34), set aside the decision of the Information Commissioner in relation to documents 1, 2, 3, 5, 6, 7 and 8 and determined these documents to be exempt on various grounds.
45 For the purposes of these reasons, it is necessary to explain in detail how the Tribunal dealt with the reopening application, the evidence in the McGregor supplementary affidavit and the construction of s 34(3).
46 Section 34 provides:
Cabinet documents
General rules
(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b) it is an official record of the Cabinet; or
(c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or
(d) it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.
(3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.
Exceptions
(4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
(5) A document by which a decision of the Cabinet is officially published is not an exempt document.
(6) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:
(a) the disclosure of the information would reveal a Cabinet deliberation or decision; and
(b) the existence of the deliberation or decision has not been officially disclosed.
47 Despite the statement made by the Deputy President on 22 October 2021 that reasons would be given for the grant of leave to Services Australia to reopen its case, those reasons were not given in the Tribunal decision. Some of the procedural history was recited commencing at TD [20], including a reference to the application to reopen and its outcome. The fact that leave was granted is noted at TD [22]. The Tribunal was conscious of the procedural disadvantage that affected Mr Warren's conduct of his case by reason of the confidentiality orders that were made in relation to aspects of the evidence of Mr Britton and Ms McGregor (TD [37]-[43]), which it directly confronted commencing at TD [42] by reference to s 63, which provides:
Tribunal to ensure non‑disclosure of certain matters
(1) In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975, the Tribunal must:
(a) have regard to:
(i) the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and
(ii) the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1); and
(b) where the proceedings relate to a document that is claimed to be an exempt document under section 33 - give particular weight to a submission made by an agency or a Minister that it is desirable to make the order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975 because disclosure of the document:
(i) would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth; or
(ii) would divulge information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
(2) Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975:
(a) the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in paragraph (1)(a); and
(b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a).
48 At TD [44] the Tribunal concluded in relation to NPP 1:
In this case a confidentiality order has been made under s 35(4) of the AAT Act with respect to NPP1 which is marked as Exhibit SLM-1 to the confidential affidavit of Ms McGregor dated 21 July 2021. The entitlement under s 39(1) of the AAT Act to inspect documents to which the Tribunal proposes to have regard is made expressly subject to s 35 of the AAT Act. Given that an order under s 35 has been made with respect to NPP1, the respondent is not entitled to inspect it.
49 At TD [45], the Tribunal reached the same conclusion for document 9. However, the Tribunal did not return to the reopening application, and the reasons why it succeeded, in the balance of the decision which extends to 263 paragraphs.
50 The Tribunal's consideration of the Cabinet documents exemption at s 34 commences at TD [49]. The Tribunal first addressed whether documents 4, 9 and 10 were exempt pursuant to s 34(1)(d) because, in the case of document 9, it was submitted to Cabinet for consideration and brought into existence for that dominant purpose and, in the case of documents 4 and 10, whether they were proposed by a Minister to be submitted to Cabinet and brought into existence for that dominant purpose: TD [54].
51 The Tribunal in part based its conclusions on acceptance of the evidence of Ms McGregor which it found to be "logically probative" in establishing the usual practice with respect to an NPP: TD [62]. For document 9, the Tribunal found, conformably with the evidence of Ms McGregor, including her evidence in the McGregor supplementary affidavit, that it "is an extremely well-advanced draft version of NPP 1": TD [68]. The Tribunal also accepted corroborating evidence to this effect from Mr Britton at TD [69], that document 9 is a draft version of NPP 1 created as of 22 March 2015: TD [70]. The Tribunal then found that NPP 1 was submitted to the ERC for its consideration and, accordingly, s 34(1)(a)(i) was satisfied: TD [71].
52 The Tribunal next considered whether NPP 1 had been brought into existence for the dominant purpose of submission for consideration by Cabinet, s 34(1)(a)(ii), from TD [72] and found that it was in accordance with the evidence of Ms McGregor and Mr Britton together with the comparison of the documents which the Tribunal undertook: TD [76]-[84].
53 The Tribunal then turned to consider documents 4 and 10 from TD [85] in reasoning that is centrally relevant to ground 1 of the appeal. Each document is dated 18 November 2015. The Tribunal reasoned that to establish the exemption at s 34(1)(d), Services Australia must prove: (1) each is a draft of NPP2 and NPP 3 respectively; (2) that NPP 2 and NPP 3 were submitted to Cabinet for its consideration or proposed by a Minister to be so submitted; and (3) that NPP2 and NPP 3 were each brought into existence for the dominant purpose of submission for consideration by Cabinet: TD [86]. Following an acknowledgement that the evidence concerning these documents "was complicated" (TD [87]), the Tribunal then reasoned at TD [88]-[92]:
Services Australia's case was that documents 4 and 10 were drafts of NPPs (namely NPP2 and NPP3) which NPPs were not submitted to Cabinet or a committee of Cabinet. However, I consider that there was inconsistent evidence as to whether or not they were submitted to Cabinet. It was put to Ms McGregor in cross-examination that NPP2 and NPP3 were not considered by the Expenditure Review Committee or Cabinet to which she responded:
Those draft versions [a reference to documents 4 and 10], from what we can see - the documents were not. But information obtained in them was considered by cabinet.
Later in cross-examination it was put to Ms McGregor that there was no deliberation on the document which is NPP2 to which she responded that "There were deliberations in relation to that document". She then gave evidence that appears to contradict that statement because she accepted that NPP2 and NPP3 were not discussed or considered by Cabinet. The topic was raised again in re-examination when Ms McGregor said that from her examination of the CabNet system, the issues and matters contained in NPP2 and NPP3 were clearly discussed and considered by Cabinet.
Ms McGregor was recalled to give evidence on 2 December 2021 and was cross-examined on her affidavit dated 21 July 2021 and, in particular, about whether NPP3 was considered by Cabinet. She said that NPP3 was attached to a letter that was potentially considered by Cabinet. When pressed, she said that it could have been considered by Cabinet, but as to whether it definitely was, she would need to go back to Cabinet records. With respect to NPP2, she denied excluding from the range of possibilities that NPP2 was in fact submitted to Cabinet.
I note that in Services Australia's Closing Submissions dated 10 December 2021, Services Australia framed its case on the basis that NPP2 and NPP3 were not submitted to Cabinet but then in the oral closing on 23 December 2021 Services Australia appears to submit that NPP2 and NPP3 were not considered by the whole of Cabinet but were considered by the subcommittee, namely the Expenditure Review Committee. This later position is consistent with the evidence in the confidential affidavit of Ms McGregor dated 21 July 2021 which, in my view, establishes that they were submitted to and considered by the Expenditure Review Committee (ERC).
It is apparent from the unredacted parts of Ms McGregor's 21 July 2021 affidavit that a brief was prepared for consideration by the Expenditure Review Committee and that a Cabinet minute was prepared. Without disclosing the content of the minute of the Expenditure Review Committee meeting, it is apparent that NPP2 and NPP3 were part of the documentation put before the ERC. Ms McGregor touched upon this in her oral evidence in chief when she was asked to identify the trail from one document to the next. She referred to a green brief, then a final costing document and then a minute that is agreed by the Expenditure Review Committee.
(Footnotes omitted.)
54 The Tribunal accepted evidence as set out in the McGregor supplementary affidavit that, upon her review by way of comparison between documents 4 and 10 and NPP 2 and NPP 3, the content of each was "nearly identical", which "strongly reinforces" Ms McGregor's view that document 4 is a draft of NPP 2 and document 10 is a draft of NPP 3: TD [97]. The Deputy President undertook his own comparison to confirm that evidence: TD [98]-[99]. Next, he considered whether NPP 2 and NPP 3 had been proposed by a Minister to be submitted to Cabinet for its consideration, concluding that each had been at TD [109]. To reach that conclusion, the Tribunal placed reliance upon evidence in the McGregor supplementary affidavit and in doing so rejected the submission of Mr Warren that there was "insufficient evidence" that NPP 2 and NPP 3 had each been proposed by a Minister to be submitted to Cabinet for consideration. At TD [105] the Tribunal stated:
The difficulty for the respondent is that he does not have access to all of the evidence that is before the Tribunal because confidentiality orders have been made with respect to parts of the affidavit and annexures of Ms McGregor. Those orders were made to protect from disclosure the very information that is the subject of the application for review. Consequently, the respondent has not had access to NPP2 and NPP3 which were redacted annexures to the affidavit of Ms McGregor dated 21 July 2021. In any event, counsel for the respondent did cross examine Ms McGregor on this topic with respect to document 4. She said:
Looking at document 4, there's an authority provided for it and it seems clear that it was brought into existence for the purpose of cabinet consideration.
(Footnote omitted.)
55 An analysis of the relevant cross-examination of Ms McGregor then appears at TD [106]-[107], followed by a statement that the Tribunal had considered the annexures to the McGregor supplementary affidavit and "[w]ithout disclosing their contents", that "included in them is a clear statement as to the source of the authority for the NPP" which complied with the procedures set out in the Cabinet handbook. Having made these findings, the Tribunal concluded at TD [109]:
I accept the evidence of Ms McGregor given under cross-examination and am satisfied based on my reading of documents 4 and 10 and NPP2 and NPP3, together with the confidential affidavit of Ms McGregor dated 21 July 2021, that authority was given to bring forward the NPPs to Cabinet and that the NPPs were proposed by a Minister to be submitted to Cabinet. I note that the evidence from Ms McGregor is consistent with and supported by the more direct evidence from Mr Britton. Further, I accept Ms McGregor's evidence as to practice that only a Minister can bring forward an NPP for consideration by Cabinet.
56 Based on the McGregor supplementary affidavit, the Tribunal then found that NPP 2 and NPP 3 had each been submitted to and were considered by the ERC: TD [110]. Finally, concerning documents 4 and 10, the Tribunal found that each had been brought into existence for the dominant purpose of submission for consideration by Cabinet: TD [111]-[121].
57 Commencing at TD [123], the Tribunal considered the meaning of s 34(3). It relied on the reasoning of Deputy President Forgie in Secretary, Department of Prime Minister and Cabinet v Sanderson [2015] AATA 361 at [55] that "deliberation" is used "to signify any careful thought and discussion that has actually taken place in Cabinet" and the decision of Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 at 560 that "deliberation" "suggests not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision": TD [126]-[127]. Emphasis was placed on the following passage from another decision of Deputy President Forgie in Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301; 78 ALD 645 at [88]:
By the same token the words "deliberation" and "decision" should not be read down by considerations as to whether, for example, matters deliberated or decided upon are preliminary to another matter or whether they relate to matters that may be categorised as procedural or substantive. The protection of Cabinet documents of the type specified has been seen as the protection of an essential public interest and so all its deliberations and decisions are protected as provided by s 34(1)(d). Taking its deliberations first, this means that information that is in documentary form and that discloses that Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies. In short, its deliberations are its thinking processes be they directed to gathering information, analysing information or discussing strategies.
58 Having referenced these decisions, the Tribunal noted the absence of direct evidence as to what was discussed by Cabinet but placed reliance upon each NPP as evidence of the content of Cabinet deliberations: at TD [129]. In doing so, the Tribunal accepted the evidence of Ms McGregor that the ERC considers the information in an NPP and uses it to assist in "their deliberations and their decision making" and continued:
…I consider that the contents of the relevant NPPs in this case reflect the deliberations of Cabinet or its committee. It follows that the matters recorded in the NPPs were the subject of deliberations by Cabinet.
59 From that premise, the Tribunal reasoned at TD [130]-[131]:
The first step when considering the primary phrase in s 34(3) is to determine whether the document contains information the disclosure of which would reveal a Cabinet deliberation. This would involve a comparative analysis between the information in the document and the Cabinet deliberation. If the information in the document included the matter of the Cabinet deliberation, then one would conclude that the document contains information the disclosure of which would reveal a Cabinet deliberation.
This is not a scientific analysis requiring an exact match. There would be many circumstances where a Cabinet deliberation would be revealed by the disclosure of information which falls well short of an exact recitation or duplication of the deliberation. The expansive meaning of deliberation requires that this be so. Further, the first step would be satisfied if only part of the Cabinet deliberation would be revealed by the disclosure of the information in the document. This is particularly relevant to the documents described as costings relating to NPP (documents 1, 2, 3). The disclosure of these documents would reveal the Cabinet deliberations with respect to costings as reflected in that part of the NPPs that dealt with costings.
60 The Tribunal also accepted the alternative submission of Services Australia that documents 4, 9 and 10 were each exempt pursuant to s 34(3) because they contain information, the disclosure of which would reveal a Cabinet deliberation. The Tribunal's reasoning was shortly expressed at TD [132]:
…It follows from my findings that documents 4, 9 and 10 were draft NPPs considered by Cabinet that a disclosure of them would reveal a Cabinet deliberation. I accept Ms McGregor's evidence that the disclosure of documents 4, 9 and 10 would reveal Cabinet deliberations. The information contained in those documents is almost identical to the information in the NPPs. The information in the NPPs reflects the deliberations of Cabinet. Therefore, it follows that the information in documents 4, 9 and 10 reflects the deliberations of Cabinet and that s 34(3) is satisfied unless the existence of the deliberation has been officially disclosed.
(Footnote omitted.)
61 The Tribunal applied this analysis to further conclude that documents 1, 2 and 3 (costing spreadsheets) were each exempt as containing information the disclosure of which would reveal a cabinet deliberation: TD [133]-[140] (the documents generally), TD [141]-[150] (document 1) and TD [151]-[154] (documents 2 and 3). Within those findings there is TD [153], which, on Mr Warren's arguments, is directly contrary to the amended SOFIC and about which he did not have fair notice. The finding is:
As I have found, it appears from the redacted material in paragraphs 8 and 17 of Ms McGregor's affidavit of 21 July 2021 that NPP2 and NPP3 were actually considered by the Expenditure Review Committee. I have already found that documents 4 and 10 are well advanced drafts of NPP2 and NPP3 respectively and that the text in the documents is almost identical. Adopting a similar approach to that applied to document 1 in the above paragraphs, it is apparent from a comparison between documents 2 and 3 (on the one hand) and documents 4 and 10 and NPP2 and NPP3 (on the other hand) that the disclosure of the costing details in documents 2 and 3 would reveal the deliberations of the Expenditure Review Committee. This finding is consistent with and supported by the evidence of Mr Britton that documents 2 and 3 contained costings for the purpose of inclusion in NPPs for consideration by the Expenditure Review Committee and contained the underpinning assumptions supporting NPP2 and NPP3 respectively for the purposes of costing.
(Footnote omitted.)
62 The Tribunal next considered documents 5, 6, 7 and 8 (draft costing requests), commencing at TD [155] and found documents 5 and 6 were not exempt pursuant to s 34(3) (TD [157]) but were conditionally exempt pursuant to s 47C (TD [229], [233], [252]-[260]). Documents 7 and 8 were determined to be exempt pursuant to s 34(3) (TD [155], [156], [158], [165] and [208]-[218]) and conditionally exempt pursuant to s 47C (TD [252]-[260]).
63 In reasoning to these conclusions, the Tribunal gave extensive consideration to the meaning of the qualification in s 34(3): "unless the existence of the deliberation or decision has been officially disclosed", commencing at TD [174]. On this question, the Tribunal returned to the decision in Sanderson at [77] where Deputy President Forgie distinguished between "deliberation or decision" and the "existence of" a deliberation or decision.
64 At TD [175], the Tribunal reasoned that "it is only those parts of the document which would reveal a Cabinet deliberation or decision that are exempt" and continued at TD [176]:
The qualification found in the last phrase of s 34(3) must be read in the context of the whole of s 34 and its purpose. Section 34(1) relevantly creates an exemption from disclosure for Cabinet submissions such as NPPs or drafts thereof. Section 34(2) creates an exemption from disclosure for a document to the extent that it contains a copy of or an extract from a document that is, itself, exempt from disclosure for one of the reasons specified in s 34(1). Section 34(3) expands the category of exempt Cabinet documents beyond those referred to in ss 34(1) and (2) to any document to the extent it contains information the disclosure of which would reveal a Cabinet deliberation or decision unless the qualification applies.
65 The general principles applicable to statutory interpretation were set out and considered by the Tribunal at TD [180]-[185] about which Mr Warren makes no complaint. The Tribunal drew a distinction between deliberation and decision at TD [188] and then emphasised: "[t]hat is an important distinction because in this case the information relates to Cabinet deliberations and not Cabinet decisions". Ultimately the Tribunal construed the provision at TD [192]-[194], as follows:
To construe the qualifying phrase, consideration is to be given to its text, context and purpose. If the text can be construed in a way that achieves consistency with the purpose then that would be the preferred construction. It is my view that the effect of the respondent's construction of the qualification is to give it a meaning that is not consistent with the objective of s 34 as stated in Fisse. That purpose is to protect Cabinet confidentiality. If the confidentiality no longer exists because of some disclosure of Cabinet deliberations, then the protection is no longer required to achieve the purpose. If, however, the disclosure only reveals the fact of Cabinet deliberations on a topic without revealing the substance of those deliberations then they would remain confidential because the deliberations themselves have not been disclosed. The same can be said with respect to the disclosure of the existence of a decision as opposed to the substance, effect or detail of a decision. An example would be where there is an announcement that Cabinet has made a decision on a particular topic but the revelation of the decision itself is delayed. Until the actual decision is revealed, it would remain confidential and should be protected from actual disclosure.
Returning to the text of the qualifying phrase, in my view there is a construction available that is consistent with the objective of s 34. I consider that the disclosure of the existence of the deliberation requires some disclosure of the deliberation itself otherwise one is left asking what is the deliberation the existence of which is said to be disclosed. It is at least necessary to identify the deliberation by disclosing its substance. For example, the qualification would not operate if there was a mere announcement that there had been deliberation prior to a decision being made. It would only operate if the announcement was of the very deliberation that had taken place namely the deliberation the revelation of which would be caused by the disclosure of the information in question.
I accept Services Australia's contention that the deliberation or decision in the qualifying phrase is a reference to the Cabinet deliberation or decision revealed by the disclosure of information in the document as set out in the primary phrase of s 34(3). This is made clear by the use of the definite article 'the' in front of 'deliberation or decision' in the qualifying phrase which clarifies that the reference to deliberation in the qualifying phrase is a reference to the deliberation in the primary phrase namely that which is revealed by the fictional disclosure of information. It is not just an announcement of any deliberation that would cause the qualification to have effect. It must be an announcement of the actual deliberation (or its substance) referred to in the primary phrase. The qualifying phrase only operates if there has been disclosure of the existence of the deliberation that is the subject of the primary phrase. By construing the qualifying phrase in this way, work is given to the words 'the existence of'.
(Footnote omitted.)
66 In rejecting Mr Warren's contrary construction submission, the Tribunal at TD [198] said:
If the respondent's submission was accepted, then information in a document that would reveal Cabinet deliberations would not be exempt from disclosure despite the substance of the deliberation not having been disclosed. In other words, even where that information remained confidential and otherwise protected from disclosure, it would in fact lose its protection merely because the fact of the Cabinet deliberation had been disclosed. It cannot have been intended by Parliament to bring about such a consequence by the inclusion of the words 'the existence of'. In order for s 34(3) to operate consistently with its objective, it should be construed on the basis that the deliberation that has been officially disclosed is the same deliberation revealed by the disclosure of information in the document.
67 The Tribunal considered its interpretation was consistent with the Explanatory Memorandum for the Freedom of Information Amendment (Reform) Bill 2010, part of which it set out at TD [199]:
Cabinet exemption
Proposed section 34 preserves the Cabinet exemption but introduces some amendments to its scope. The Cabinet exemption is concerned with protecting information central to the Cabinet process and ensuring that the principle of collective ministerial responsibility (central to the Cabinet system) is not undermined.
...
Proposed subsection 34(3) exempts a document to the extent it contains information which would reveal a Cabinet deliberation or decision except if the deliberation or decision has been officially disclosed. It is intended that the exemption would still be available to any part of the document that contains a deliberation or decision that has not been publicly announced.
68 Which then led the Tribunal to its construction conclusion at TD [201]:
I consider that the Explanatory Memorandum supports my view that Parliament intended that the qualifying phrase in s 34(3) operate in a way that is consistent with the objective of maintaining Cabinet confidentiality unless there has been public disclosure of that confidential information. If Parliament had intended there to be such a significant departure from the established convention of Cabinet confidentiality, then it would have made that clear in the legislation.
69 Mr Warren contends that the Tribunal erred in coming to this conclusion.