The Deputy President of the Administrative Decisions Tribunal, Professor Walker, in Fisse and Department of Treasury has found that a report, now four years old, on the legal and policy issues associated with the introduction of criminal offences for cartel behaviour prepared by a working party of government officials, was exempt from disclosure under the Freedom of Information Act. This despite evidence from the applicant , an expert on competition law and two other highly respected authorities in this field, that the report was of central public significance to the business community, the legal profession and academics, and that the failure to disclose it would impede informed public debate and academic research on an issue that is controversial and still under consideration.
However the Treasury successfully argued that the executive summary of the report was exempt as a copy of a document prepared for submission to cabinet; and the full report(other than factual information released to the applicant) was exempt as an internal working document, on the grounds that it contained advice and recommendations, the disclosure of which would be contrary to the public interest.
The executive summary had been attached to a cabinet submission, but for the exemption to apply it had to be established that submission to cabinet was the purpose, understood at the time, for which it was prepared.The evidence on this(at 69 )was equivocal. Cabinet had asked the Treasurer to come back with recommendations after the working party had completed its report, but it was clear the report was for the Treasurer and was submitted to him. On one reading it was open to Professor Walker to conclude that the document was a preliminary document of a kind not covered by the Cabinet exemption , but he attached weight to other evidence including the views of a senior officer in the Prime Minister's Department that everyone understood the document would end up going to cabinet even though no-one actually said this(at 84).
Treasury dropped the argument that the working party report as a whole was exempt as a cabinet document,but came at the issue through a side door, submitting that it was contrary to the public interest to disclose this document because:
"release of the report would disclose the content of material prepared to support a recommendation to Cabinet and formulated for the purpose of assisting Cabinet deliberations and a Cabinet decision. Disclosure would breach the convention of Cabinet confidentiality, which is pivotal to the proper functioning of the executive and the parliament of the Commonwealth. Even though the full report does not fall within the terms of (the cabinet exemption) the public interest would not be served by interfering with the convention of confidentiality"(at 112)Professor Walker in essence accepted the argument that the product of consideration of the issues by a group of senior public servants should be accorded the same degree of confidentiality as the deliberations of ministers in the cabinet room because cabinet subsequently looked at a submission from the Treasurer on the same subject that may or may not have reflected their views or recommendations.
It was irrelevant that the report was not provided to cabinet, considered by it or adopted by it(at115);that no deliberations of cabinet would be directly disclosed(at117);that there was no inherent sensitivity of the subject matter(at119);that four years had elapsed since the report was prepared(at121);or that there had been a change of government in the meantime(at122).
All this my be "good law "in the sense there are precedents that support this interpretation of the Act and conclusions drawn from the evidence by Professor Walker.
But if the Rudd Government is really interested in striking the right balance between the right to know and the confidentiality necessary for the operations of government, and encouraging public participation in government decision making(an underlying rationale of the FOI Act for 25 years) ,it needs to do something about an act that contemplates decisions like this, and about the attitudes to disclosure by agencies such as Treasury that seem inclined to grab onto an exemption claim just because they can.
Someone at the 2020 Summit might ask the question.
Love to know what Kate Harrison, now chief of staff to the minister responsible John Faulkner makes of this.She acted for Fisse until appointed to the Minister's staff a few months ago.