08 Apr 2009

Cabinet documents and FOI: The Full Federal Court decides

by Avinesh Chand, Alice Linacre

The Full Federal Court upholds AAT's interpretation of cabinet document exemption and its application to the facts in this case. But criticises the evidence that the AAT relied on to reach its decision.

On 11 December 2008 a Full Court of the Federal Court of Australia (Justices Stone, Buchanan and Flick) dismissed an application by Mr Fisse seeking review of the AAT's decision to exempt the release of certain documents pursuant to sections 34(1)(a) and 36 of the Freedom of Information Act 1982 (Fisse v Secretary, Department of Treasury [2008] FCAFC 188.

The AAT had decided that the executive summary of a report prepared by a working party appointed by the Treasurer, and ultimately submitted to Cabinet, was exempt from disclosure pursuant to the cabinet documents exemption in section 34(1)(a) of the FOI Act. That section provides that a document is exempt from disclosure if it "was brought into existence for the purpose of submission for consideration by the Cabinet" and "has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted". The AAT found that the working party's complete report, which had not been submitted to Cabinet, was also exempt pursuant to section 36 of the FOI Act (the working documents exemption).

It is important to note, however, that this decision affects the exemption as it currently stands, but that the Government is planning a reform (see our first article for proposed statutory changes to the cabinet document exemption).

Construing the exemption in section 34 of the FOI Act

In his judgment, Justice Flick noted that in determining a claim for exemption made pursuant to section 34(1)(a) of the FOI Act, "it is the terms of that section that must be construed and applied". Although he acknowledged "the common law principles protecting the secrecy of the workings of Cabinet cannot be divorced entirely from s 34", nevertheless, the FOI Act represents "a shift in emphasis away from tendencies of secrecy in government to open government" and, thus, the exemption must be construed according to its terms.

What is the relevant purpose?

Justice Buchanan commented that no suggestion had been made in the appeal that section 34(1)(a) "required the identification of a sole, or even a dominant purpose before it was engaged". Citing his own judgment from the Victorian Court of Appeal in Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11, he noted that no attempt had been made before the AAT, or on appeal, to assert that "but for" the intention to submit the executive summary to Cabinet, the document itself would not have been created. Justice Buchanan accepted that the purpose which is referred to in section 34(1)(a) does not have to be the sole purpose for which the document is created. On the other hand, Justice Flick, also citing Dalla-Riva, considered that it was accepted on appeal "that the 'purpose' to be established referred to the 'dominant purpose or one of a number of significantly contributing purposes' or 'causative in the sense that, but for its presence' the document would not have been prepared".

Was there sufficient evidence before the AAT to be satisfied of the purpose of the executive summary?

As both Justices Flick and Buchanan noted, in order for the AAT to be satisfied that the executive summary attracted the operation of section 34(1)(a), not only did it have to be placed before Cabinet, it must also have been brought into existence for the purpose of consideration by Cabinet.

Both expressed misgivings about the manner in which the Tribunal had satisfied itself as to the purpose of the creation of the executive summary. They noted that the AAT had appeared to rely on evidence given by Ms Croke, an Assistant Secretary and head of the Cabinet Secretariat in the Cabinet division of the Department of Prime Minister and Cabinet, about the purpose for which the executive summary was brought into existence. Ms Croke's testimony as to the purpose for the creation of the executive summary was an interpretation of the correspondence passing between the former Treasurer and the former Prime Minister, which Ms Croke had interpreted, based on her experience and training, as suggesting that the executive summary had been prepared for submission to Cabinet.

Justice Buchanan found that no evidence given by Ms Croke directly supported the conclusion expressed in the AAT decision about the purpose for which the executive summary was created and no evidence given by her reasonably supported an inference to that effect. However, he noted that the AAT had also relied on an interpretation of the former Prime Minister's letter to the Treasurer, that Cabinet would consider recommendations made by the working party in its report to the Treasurer, as demonstrating that the executive summary had been created for the purpose of consideration by Cabinet. Justice Buchanan concluded that, while he took the view that the AAT’s understanding of the letter was erroneous, he could not say that "it was an inference so unreasonable that it could not be drawn or that the correspondence necessitated the opposite conclusion".

Justice Flick expressed similar concerns about the state of the evidence and the reasoning process. While he considered that there was clearly "better evidence" as to the purpose for which the Executive Summary was prepared, Mr Fisse chose not to object to the evidence tendered and made no submissions that he was deprived of the opportunity to properly test the evidence.

Considering the public interest for the purposes of section 36 of the FOI Act

In relation to the working party report, Mr Fisse argued that the AAT had incorrectly given special weight to the preservation of the confidentiality and secrecy of cabinet submissions when applying the public interest test in section 36 of the FOI Act, and that the AAT had taken an irrelevant consideration into account, namely the convention that new Ministers in an incoming government do not have access to documents recording the deliberations of Ministers in the previous government. Both arguments were rejected by the Full Court which determined that the report was exempt as a working document.

What does this case mean for you?

  • In dealing with FOI requests, Cabinet documents should be treated with sensitivity given the importance of Cabinet confidentiality in our system of government;
  • The purpose for which a document has been created is going to be of critical importance when considering whether the exemption at section 34(1)(a) applies. The document does not have to be created for the sole purpose of being considered by Cabinet. What the exact test is for determining whether the purpose has been established remains to be determined.
  • In establishing "purpose", it is advisable to have regard to the statements and intentions of those who are directly involved in the creation of the document rather than relying on knowledge of general practice or the opinion of other people not involved in the creation of the document.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.