Client Newsletter

Freedom of Information Client Update:

Millar v Department of Premier and Cabinet (General)

[2011] VCAT 1230: The application of the ‘Communications between States/Territories/Commonwealth’ Exemption (s 29) - Carbon Scheme documents

August 2011

Page 1

Introduction

This update reviews a recent decision by the Victorian Civil and Administrative Tribunal (VCAT) in Millar v Department of Premier and Cabinet (General) [2011] VCAT 1230. In this decision, VCAT considered the application of s29 of the Freedom of Information Act 1982(Act), which provides for the exemption of certain communications made between States, Territories and/or the Commonwealth.[1]

Facts

The applicant was seeking access to 11 documents which consisted of communications (letters and emails) between the Office of the Premier of Victoria or the Victorian Department of Premier and Cabinet, and the Commonwealth, relating to the Carbon Pollution Reduction Scheme (CPRS) proposed to be introduced in the later part of 2009 by the Commonwealth Labor Government, then headed by former Prime Minister Kevin Rudd.

It was claimed by the respondent that the documents were all exempt pursuant to s 29(a) of the Act. In relation to one document, it was also claimed that a part of the document (consisting of an email from the Commonwealth) was exempt under s 29(b) of the Act.[2]

Summary

VCAT recently considered the exemption under s 29 of the Act, which applies to certain communications between governments of States, Territories and/or the Commonwealth.

In the context of federal policy making, VCAT confirms that the purpose of the exemption contained in s 29 is to protect the ability of the State to:

  • have ‘sufficient’ and ‘the most appropriate and resource efficient mode of’ access to the Commonwealth’; and
  • lobby and perform one-on-one negotiations with the Commonwealth relating to relevant policy development.

In its recent decision, VCAT also relied upon a number of factors in determining whether the exemption in s 29 applied, providing further guidance as to the application of this exemption.

Section 29 of the Act provides:

A document is an exempt document if disclosure under this Act would be contrary to the public interest and disclosure and:

(a)Would prejudice relations between the State and the Commonwealth or any other State or Territory; or

(b)Would divulge any information or matter communicated in confidence by or on behalf of the government of another country or of the Commonwealth or of any other State or Territory to the government of the State or Territory or a person receiving a communication on behalf of that government.

Decision

Vice President Judge Lacava found that the documents were all exempt pursuant to s 29(a) of the Act, and that part of one document consisting of an email from the Commonwealth was exempt under s 29(b).

Section 29(a)

Judge Lacava took into account the following matters in finding that the exemption in s 29(a) of the Act applied to the documents:

release of the documents may hinder the ability of the Victorian Premier or department heads to negotiate with the Commonwealth in future, especially in relation to matters concerning federal policy development;[3]

if the written communications between senior members of government in Victoria or department heads with their Commonwealth counterparts were amenable to release under the Act, they may be less frank in their communications and this would be detrimental to policy development and reform;[4]

the documents were a snap-shot of policy development in time. The Commonwealth is (even now) yet to finalise its climate change policy.[5] The release of these documents in circumstances where negotiations are ongoing and federal policy is yet to be determined may mislead the public;[6]

State and Territory competition for funding and resource allocation existed. Revealing Victoria’s position would impact on its relations with other States and Territories;[7] and

the release of the documents would reveal confidential details of Victoria’s strategy in dealing with the Commonwealth, which would be detrimental to Victoria’s negotiating position.[8]

Judge Lacava identified the following ‘important public interest that needs to be protected’, and explained that the reason ‘why the section 29 exemption is in the Act’ is for the purpose of:[9]

protecting the ability of the state, in a Federal setting, enabling it to have sufficient access and, the most appropriate and resource efficient mode of access, to the Commonwealth in order to lobby and perform one-on-one negotiations relating to the detail of relevant federal policy.[10]

In particular, Judge Lacava accepted the respondent’s public interest grounds as relevant public interest considerations in this case, including:

the protection of uninhibited exchanges between the governments of Australiaon questions of policy and resource allocation;

the encouragement of cooperative federalism within Australia;

the protection of processes that contribute to high-quality policy development by the governments of Australia;

to ensure members of the public have access to accurate and reliable information that gives a true indication of the basis for government policy;

the protection against unnecessary confusion and debate by avoiding the premature release of documents that represent a stage in the decision-making process; and

the protection the State of Victoria’s negotiating position in relation to present and future proposals concerning climate change.[11]

His Honour considered the applicant’s public interest arguments, that climate change and the government’s response to it are pressing public policy questions facing Australia.[12] His Honour acknowledged that the subject of climate change is very much of interest to the public and that large amounts of taxpayer money would be spent by the government addressing the subject.[13]

Nevertheless, Judge Lacava found that these public interest factors did not outweigh the public interest in ensuring that the Victorian Government is able to correspond with the Commonwealth in a manner that will remain confidential in the context of policy development, particularly in a federal system where one State’s interest may be pitted against the interest of another.[14]

Section 29(b)

Judge Lacava found that the exemption in s 29(b) also applied in relation to the part of the document consisting of an email from the Commonwealth, as there was a presumption of confidentiality arising from the fact that the email chain related to a policy in development.[15]

Key messages

At least in the context of federal policy development, the purpose of the exemption contained in s 29 is to protect the ability of the State to:

have ‘sufficient’ and ‘the most appropriate and resource efficient mode of’ access to the Commonwealth; and

lobby and carry on one-on-one negotiations with the Commonwealth relating to relevant policy development.

Some key factors VCAT may consider in determining whether s 29 applies include:

the purpose and subject matter of the communication. There is a willingness to exempt communications relating to policy development;

the point in time at which the communication occurred. There is less willingness to release communications which reveal only a snapshot of policy development in time, because such ‘premature’ release may:

disadvantage the State’s position in future negotiations on the same subject; and/or

mislead the public, causing unnecessary confusion and debate about the proposed policy;

whether the release of the communication would result in less effective communication. For example, whether it could be shown that release would result in:

communications being less frank and candid, or

governments resorting to methods of communication that may be less efficient or difficult to carry out (e.g. no longer using written communications, and only communicating by telephone or at meetings); and

whether there is competition for funding and resource allocation. In particular, whether the release would:

For further information or legal advice on any issues raised in this newsletter contact:
Jonathan Smithers, Assistant Victorian Government Solicitor, 03 9032 3011
Elsie Loh, Senior Solicitor, 03 9032 3036
Katie Miller, Principal Solicitor, 03 9032 3005
Daniel Perkins, Senior Solicitor, 03 9032 3009
The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions.

impact on the State’s relations with other States and Territories, and/or

whether release would reveal the State’s negotiating position, making it more difficult to negotiate in future.

[1] It also applies to communications with a government of another country.

[2] Other exemptions were also claimed (including ss 30, 32, 34). VCAT, however, was of the view that it was unnecessary to consider these exemptions because of its finding that the documents were all exempt by s29 of the Act.

[3]Millar v Department of Premier and Cabinet (General) [2011] VCAT 1230, [61].

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid, [66].

[8] Ibid, [61].

[9] Ibid, [63].

[10] Ibid.

[11] Ibid, [62].

[12] Ibid, [64].

[13] Ibid, [64]; also [28]-[29].

[14] Ibid, [64].

[15] Ibid, [67].