The Full Court of the Federal Court of Australia yesterday unanimously dismissed his appeal from a decision of the Deputy President of the Administrative Appeals Tribunal who found in favour of The Treasury, that the executive summary of a working group report prepared in April 2004 was exempt as a cabinet document, and the rest of the report exempt as an internal working document. Fisse's lawyers made submissions after the decision was handed down seeking variation of the unanimous decision also that he should pay the Treasury's costs.
Fisse lost because the Court only had jurisdiction to consider an appeal on a question of law and the Court couldn't find any errors in this respect, although comments by two of the three judges suggest they thought the Deputy President of the Tribunal had drawn a long bow on findings of fact on the question whether the summary had been prepared for the purpose of submission to cabinet- a key issue in the claim for exemptions. They accepted that vague and ambiguous words in correspondence between the Treasurer (Costello) and Prime Minister (Howard) were capable of meaning that it was intended that the summary, when later drafted, would be attached to a cabinet submission.However Justice Buchanan observed(emphasis added):
"The AAT was entitled to come to a view about whether (the letters) suggested the purpose for which the respondent contended. Although, in my view, the interpretation placed on the correspondence is too strained to be accepted as correct, and although it did not, contrary to the AAT’s statement, receive support from Ms Croke, that interpretation may not be dismissed as one incapable of being reached. Although, in my view, the AAT’s conclusion about its meaning was erroneous I could not say that it was an inference so unreasonable that it could not be drawn or that the correspondence necessitated the opposite conclusion. As a result, slender though in my view the support was, there was some support for the AAT’s conclusion that the executive summary was prepared for the purpose of consideration by Cabinet. "
Justice Buchanan earlier [65-71] commented that evidence by an assistant secretary of the Department of Prime Minister and Cabinet about "normal practice" did not support a conclusion that the summary was prepared for submission to cabinet in this instance.
Justice Flick [121-130] considered there were legitimate grounds for misgivings about aspects of the Tribunal's findings and conclusions that the summary had been prepared for submission to cabinet.While no inference that went to an error of law could be drawn, he wondered why no-one with direct knowledge of what happened at the time, such as a member of the working party, had given evidence to the Tribunal about what was thought to be the purpose of the summary at the time it was prepared.
In the only judgment that considered issues concerning the internal working document exemption found by the Tribunal to apply to the main body of the report, Justice Flick  found no error in the weighing of various public interest factors for and against disclosure, including the public interest in preserving the confidentiality of Cabinet submissions and deliberations. It was not for the Court to go further:
"146 But the weight to be given to those competing factors relevant to an assessment of the "public interest" remains a matter for the Tribunal -- not this Court. The reasons of the Tribunal do not disclose that it gave such weight to one particular "factor" to the exclusion of others. It expressly referred to -- and took into account -- the "three factors" in favour of disclosure, but concluded that those factors did not prevail."In conclusion Justice Flick summarised:
"152 Each of the findings of the Tribunal -- namely its finding as to the "purpose" for which the Executive Summary was prepared under s 34(1)(a) and its finding as to the public interest under s 36(1)(b) of the 1982 Act -- were findings of fact open to it upon the evidence. Although the evidence upon which the finding as to "purpose" was reached may be the subject of considerable reservation, for this Court itself to reach a different conclusion would involve the Court trespassing beyond the "question of law" raised on appeal and would involve this Court in impermissibly reviewing a finding of fact open to the Tribunal on the evidence. 153 It is not for this Court to express its own conclusion as to whether it would have been satisfied that the "purpose" for which the Executive Summary was prepared was for the "purpose of submission for consideration by the Cabinet", nor to express its own conclusion as to whether disclosure of the Working Party Report "would be contrary to the public interest". Given the findings of fact as made by the Tribunal, the upholding of the claims for exemption cannot be said to be an "unwarranted withholding of disclosure" of the documents to which access was sought. 154 The Tribunal concluded that the first respondent had discharged the onus imposed by s 61 of the Freedom of Information Act by establishing the exemptions claimed pursuant to s 34(1)(a) and (c) and s 36(1)(b) of that Act. In the present proceeding, it is not open to this Court to disagree."Here is what I said about the Tribunal decision at the time (April 2008) under the heading "Treasury proves it's still a closed shop". I'm still of the same view:
On the summary-
"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 ( the Tribunal) 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)."
On the report as a whole-
"(The Tribunal) 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)."
And on the Government's position as evidenced by the Treasury approach to the case-
"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 ..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."