Warren v Chief Executive Officer, Services Australia [2024] FCAFC 73 (7 June 2024)

Last Updated: 17 June 2024

FEDERAL COURT OF AUSTRALIA

Warren v Chief Executive Officer, Services Australia [2024] FCAFC 73

Appeal from:	Services Australia v Warren [2022] AATA 4191
File number:	VID 763 of 2022
Judgment of:	KATZMANN, MCELWAINE AND KENNETT JJ
Date of judgment:	7 June 2024
Catchwords:	ADMINISTRATIVE LAW – Appeal from a decision of a Deputy President of the Administrative Appeals Tribunal – where applicant seeks access to ten documents pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act) relating to the Pay As You Go (PAYG) data matching initiative, also known as Robodebt – where access to documents refused in reliance on the Cabinet documents exemption at s 34, alternatively s 47C of the FOI Act – whether applicant was denied procedural fairness by reason of the Tribunal failing to engage with substantial issues raised by the parties – where respondent’s case varied during closing address without fair notice to the applicant and without affording a reasonable opportunity to respond – whether those matters caused practical injustice in the circumstances – construction of the Cabinet document exemption at s 34(3) of the FOI Act – meaning of “contains information the disclosure of which would reveal a Cabinet deliberation or decision” and “unless the existence of the deliberation or decision has been officially disclosed” – appeal allowed and matter remitted for rehearing
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 39, 43 Freedom of Information Act 1982 (Cth) ss 3, 11, 34, 47C, 61, 63
Cases cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 Boensch v Pascoe [2019] HCA 49; 268 CLR 593 BVD 17 v Minister for immigration and Border Protection [2018] FCA 114; 261 FCR 35 BVD 17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 Carrascalao v Minister for Immigration and Border protection [2017] FCAFC 107; 252 FCR 352 Colonial Mutual Life Assurance Society Ltd v Donnelly [1998] FCA 364; (1998) 82 FCR 418 Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 456; 98 FCR 31 Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Fisse v Secretary, Department of the Treasury [2008] FCAFC 185; 172 FCR 513 Harris v Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Montenegro v Secretary, Department of Education [2020] FCAFC 210; 281 FCR 346 Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 National Disability Insurance Agency v KKTB, by her Litigation Representative CVY22 [2022] FCAFC 181 News Corp LTD v National Companies and Securities Commission (1984) 5 FCR 88 Plaintiff M1/2021v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50: 258 CLR 173 Re Minister for immigration and Indigenous Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247 Re Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301 Secretary to the Department of infrastructure v Asher [2007] VSCA 17; 19 VR 17 Secretary, Department of Prime Minister and Cabinet v Sanderson [2015] AATA 361 Services Australia v Warren [2022] AATA 4191 SZGUR v Minister for Immigration and Citizenship [2010] FCA171; [2010] FCA 171; 114 ALD 112 Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16 Warren v Chief Executive Officer, Services Australia [2023] FCA 1337
	Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2010 (Cth) Report on the Freedom of Information Bill 1978, Senate Standing Committee on Constitutional and Legal Affairs, 6 November 1979 Revised Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2010 (Cth) Second Reading Speech, Freedom of Information Bill 1978
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	174
Date of last submission/s:	23 December 2023
Date of hearing:	18 August, 29-30 November 2023
Counsel for the Applicant:	Mr T Brennan SC and Mr G Ayres
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondent:	Mr R Knowles KC and Ms E Smith
Solicitor for the Respondent:	Australian Government Solicitor

Table of Corrections
12 June 2024	In the second and third sentences of paragraph 131, the words “he submitted” have been replaced with “it was submitted”.
12 June 2024	In the fourth sentence of paragraph 131, the words “he contended” have been replaced with “it was contended”.
12 June 2024	In the first sentence of paragraph 36, “admitted” has been inserted after “was”.
12 June 2024	In the second sentence of paragraph 165, “the word “his” has been replaced with “its”.

ORDERS

		VID 763 of 2022
BETWEEN:	JUSTIN WARREN Applicant
AND:	CHIEF EXECUTIVE OFFICER, SERVICES AUSTRALIA Respondent

ORDER MADE BY:	KATZMANN, MCELWAINE AND KENNETT JJ
DATE OF ORDER:	7 JUNE 2024

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The decision made by the Administrative Appeals Tribunal on 2 December 2022 in matter number 2019/7870 be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal for rehearing and determination according to law.
4. The respondent pay the applicant’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN AND KENNETT JJ:

1. We agree with the orders proposed by McElwaine J. Except in one respect, we also agree with his Honour’s reasons. We would reject ground 1(b) of the Amended Notice of Appeal.
2. The starting point, as his Honour correctly observes, is that the procedural decision to permit Services Australia to re-open its case did not engage the duty to give reasons in s 43 of the AAT Act. One thing that follows from this is that the drawing of inferences from silences or gaps in such reasons as the Tribunal did give cannot proceed on an assumption that the Tribunal was complying with a duty to give “reasons” of any particular standard or type (such as reasons including “findings on material questions of fact and a reference to the evidence or other material on which those findings were based”, as expressed in s 43): see eg Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] (French CJ, Bell, Keane and Gordon JJ). In Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 Griffiths J, having recognised this limitation (at [42]), was nevertheless prepared to find that a mandatory relevant consideration had not been taken into account (at [63]); however, this was in circumstances where the decision maker had voluntarily provided comprehensive written reasons for her decision (see at [44]). The comprehensiveness of the reasons permitted an inference that, if a factor had been considered, it would have been mentioned.
3. In this case, the Tribunal announced its decision to permit re-opening orally. To the extent reasons were given, those reasons did not go beyond a conclusory statement:

I consider that the interests of justice are better served by allowing the application for leave to reopen. Consequently the tribunal grants leave to the applicant to reopen its case as applied for on 15 October 2021.

4. This decision was given at the resumption of the interlocutory hearing after lunch on 22 October 2021, with the presiding member having indicated prior to adjourning that he would give a decision on the re-opening application after lunch but proposed to include reasons for that decision in his “final reasons on the substantive matter”. No such reasons were included in the Tribunal’s final written reasons (which, while unfortunate, did not constitute reviewable error for the reasons given by McElwaine J).
5. The Tribunal’s reference to “the interests of justice” reflected the use of that term in the oral submissions of senior counsel for Services Australia and in exchanges between the presiding member and counsel for both parties. It reflects, if nothing else, some level of engagement with the arguments that had been put and some appreciation that the decision involved a balancing of factors including fairness to the parties. However, the expression is conclusory, and put at such a high level of generality that it does not constitute even a foretaste of the statement of reasons that was (at that stage) proposed to be given later.
6. In these circumstances, we do not think it is possible to infer from the Tribunal’s reasons that any of the complex and detailed arguments presented by the parties was overlooked or not grappled with.
7. We did not understand Mr Warren to submit that any such failure could be inferred from other facts and circumstances, such as the short time that the presiding member gave himself to consider the issues (cf Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352), or from the result itself. We would reject any such submission:

(a) As to timing, the Tribunal had the benefit of detailed written submissions from both parties (provided in the days leading up to the interlocutory hearing) as well as being addressed by senior counsel over the course of the morning. There is no reason to infer that the Tribunal came to a decision without having been properly acquainted with the issues.

(b) The outcome itself does not provide a basis for inferring that arguments against that outcome were not understood and properly weighed. That inference could only be made if the argument said to have been ignored was one that was determinative on any rational view. Instead, in the present case there were serious considerations pointing both ways. One such consideration was the Tribunal’s obligation to come to the correct or preferable decision and the public interest in that decision being reached on the basis of the best evidence available. The relevant interests in that respect went beyond those of the immediate parties and (at least arguably) supported a view that the outcome of the review should not be decided by mistakes, forensic or otherwise, made by a party in the preparation of its case. While the potential for unfairness to Mr Warren obviously pointed in the opposite direction, the Tribunal could be forgiven for thinking that that unfairness could be minimised by appropriate procedural orders.

8. In our view, therefore, ground 1(b) fails. However, we agree with McElwaine J that ground 1(c) succeeds and that ground 1 is therefore made out. As indicated at the outset of these reasons, we also agree with what his Honour has said concerning the other issues in the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann and Kennett.

Associate:

Dated: 7 June 2024

REASONS FOR JUDGMENT

MCELWAINE J:

INTRODUCTION

9. This appeal concerns 10 documents that Mr Justin Warren seeks to access. On 14 January 2017, he made a request for the provision of documents pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act) relating to the Pay As You Go (PAYG) data matching initiative as it was then known, but which subsequently became known as Robodebt. The request was addressed to the Department of Human Services. On 6 February 2017, Mr Warren revised his request. The Department identified 13 documents in its possession as within the scope of the request, (totalling 287 pages), but refused access in reliance on the Cabinet documents and investigative procedure exemptions at ss 34 and 37(2)(b). For convenience each reference to a statutory provision is to a provision of the FOI Act, unless otherwise stated.
10. Mr Warren did not accept the decision of the Department and initiated a review by the Information Commissioner as provided for in Pt VII of the FOI Act. For reasons published on 11 November 2019, the Commissioner set aside the Department’s decision for seven documents in issue and affirmed the decision in relation to three documents. On 29 November 2019, Services Australia (the new executive agency which assumed responsibility for the functions of the Department) applied to the Administrative Appeals Tribunal for review of the Commissioner’s decision and maintained that the documents were exempt.
11. The proceeding before the Tribunal was protracted and detailed. The hearing occurred over six days in June, October and December 2021. For reasons published on 2 December 2022, the Tribunal affirmed the decision of the Information Commissioner in relation to four documents and set aside the decision in relation to seven documents, concluding those documents were exempt from disclosure pursuant to ss 34(1)(d), 34(3) and or 47C: Services Australia v Warren [2022] AATA 4191 (TD).
12. Mr Warren now appeals the decision of the Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). At a high level of analysis, the documents in issue relate to New Policy Proposals (NPPs), draft NPPs and costing documents relating to NPPs. The annual budget process commences when the Expenditure Review Committee of Cabinet (ERC) considers proposals from portfolio ministers from which the budget is developed. An NPP is a proposal for a new policy that has a financial impact. Such policies are first presented to the Department of Finance, usually in the form of a costing request. Once approved by the relevant minister, the NPP is placed before the ERC and the Cabinet for consideration. It is only a minister who may bring forward an NPP for consideration by Cabinet or the ERC. Detailed costings that support an NPP are not usually placed before the Cabinet or the ERC.
13. To assist in comprehension, I summarise the documents in issue and the determined status of each in tabular form:

Doc	Description	Services Australia	Information Commissioner	Tribunal
1	Costing document (relates to Document 9 and NPP1) Relates to the first iteration of welfare payment compliance measures and contains detailed costings that informed the development of and supported the proposal in Document 9 (and NPP1)	Exempt – financial information relating to cost of implementing measures in NPPs	Not exempt under s 34 or 47C	Exempt under s 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
2	Costing document (relates to Document 4 and NPP2) Relates to second iteration of welfare payment compliance measures and contains detailed costings that informed the development of and supported Document 4 (and NPP2)	Exempt – financial information relating to cost of implementing measures in NPPs	Not exempt under s 34 or 47C	Exempt under s 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
3	Costing document (relates to Document 10 and NPP3) Relates to the second iteration of welfare payment compliance measures and contains detailed costings that informed the development of and supported Document 10 (and NPP3)	Exempt – financial information relating to cost of implementing measures in NPPs	Not exempt under s 34 or 47C	Exempt under s 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
4	Found by the Tribunal to be a draft of NPP2 Prepared in the context of seeking Budget expenditure approval in the 2015-16 Mid-Year Economic and Fiscal Outlook	Exempt – draft of NPP	Exempt under s 34	Exempt under ss 34(1)(d) and 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
5	Draft costing requests (in relation to NPP4) Relates to the third iteration of welfare payment compliance measures.	Exempt – financial information relating to cost of implementing measures in NPPs	Not exempt under ss 34 or 47C	Not exempt under s 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
6	Draft costing requests (in relation to NPP5) Relates to the third iteration of welfare payment compliance measures.	Exempt – financial information relating to cost of implementing measures in NPPs	Not exempt under ss 34 or 47C	Not exempt under s 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
7	Draft costing requests (relates to NPP3 and NPP6) Relates to the third iteration of welfare payment compliance measures.	Exempt – financial information relating to cost of implementing measures in NPPs	Not exempt under ss 34 or 47C	Exempt under s 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
8	Draft costing requests (relates to Document 4 and NPP2) Relates to the second iteration of welfare compliance measures in the 2015-16 Mid-Year Economic and Fiscal Outlook	Exempt – financial information relating to cost of implementing measures in NPPs	Not exempt under ss 34 or 47C	Exempt under s 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
9	Draft of NPP1 Relates to the first iteration of welfare payment compliance measures which was delivered under the 2015-16 Budget.	Exempt – draft of NPP	Exempt under s 34	Exempt under ss 34(1)(d) and 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest
10	Found by the Tribunal to be a draft of NPP3 Prepared in the context of seeking budget expenditure approval	Exempt – draft of NPP	Exempt under s 34	Exempt under ss 34(1)(d) and 34(3) (qualification does not apply) Conditionally exempt under s 47C, disclosure contrary to the public interest

14. At the outset, it is relevant to say something about two matters.
15. First, the status of documents 5 and 6. On 20 July 2023, well after the commencement of this appeal, the respondent provided “administrative access” to these documents by providing copies to Mr Warren’s solicitor. It did so consistently with a concession it had made to the Tribunal that the documents were not exempt pursuant to s 34. Despite that concession, the Tribunal found the documents to be exempt: TD [225]. Mr Warren, however, continues to press his arguments concerning these documents, insisting that it should be held that he has a right to obtain them pursuant to the FOI Act, rather than by the exercise of an administrative discretion.
16. Second, a considerable amount of the content and information contained in the documents in issue entered the public domain in consequence of the conduct of the Royal Commission into the Robodebt scheme, established by Letters Patent issued on 18 August 2022, and the Commission’s Final Report as delivered to the Governor-General on 7 July 2023, by Commissioner Holmes AC SC. Despite public disclosure, Services Australia resists Mr Warren’s appeal and has obtained several orders pursuant to s 37AF(1)(b) of the Federal Court of Australia Act 1976 (FCA Act) preventing the publication of documents 1 to 4 and 7 to 10 (and related affidavit material and exhibits), as explained in my reasons of published on 3 November 2023: Warren v Chief Executive Officer, Services Australia [2023] FCA 1337. The reference to the related affidavit material and exhibits is to a confidential supplementary affidavit made by Ms Leonie McGregor on 21 July 2021, relied on in the proceeding before the Tribunal (McGregor supplementary affidavit) and particularly to annexures SLM-1 to SLM-7 thereto. Broadly, those orders prevent publication of the documents in issue in this appeal (otherwise the appeal would be rendered moot) and related documents which disclose the content of the documents in issue and/ or redacted portions thereof which have not entered the public domain and over which Services Australia maintains the exemption claims.
17. That observation is not meant in any way as a criticism Services Australia. We are concerned in this appeal with whether the Tribunal erred in law in its decision published on 2 December 2022, at a time when much of the content of the documents in issue had not entered the public domain. As such it matters not that Mr Warren, and members of the public generally, now know or may ascertain a substantial amount of the information that is in documents 1 to 10. Mr Warren insists that he had, and has, a statutory right to all the documents in issue. It is also the case that there is some material in the McGregor supplementary affidavit and SLM-1 to SLM-7 which remains confidential. Further, in part, this appeal raises important questions about the construction of core provisions of the FOI Act.
18. Mr Warren raises two fundamental issues.
19. One is that he was denied procedural fairness when Services Australia successfully applied to reopen its case, in reliance on evidence the subject of confidentiality orders and which for that reason was not disclosed to him. Relatedly, this point extends to a complaint that the Tribunal failed to give reasons for allowing Services Australia to reopen, despite stating that reasons would be provided in the final decision.
20. The other is that the Tribunal misconstrued the exemption in s 34(3) for documents that contain information that would reveal a Cabinet deliberation or decision unless the existence of the deliberation or decision has been officially disclosed.
21. Resolution of the first issue requires an understanding of how the review application was framed and dealt with by the Tribunal.

THE PROCEDURAL HISTORY BEFORE THE TRIBUNAL

22. The respondent filed its application for review on 29 November 2019. Conformably with the Tribunal’s procedures, on 8 May 2020, Services Australia filed a Statement of Facts, Issues and Contentions (SOFIC). In that document it was relevantly contended that:

(1) Documents 1, 2 and 3 are costings exempt pursuant to s 34(3).

(2) Document 4 is a draft NPP, exempt pursuant to s 34(1)(d) and (3).

(3) Documents 5, 6, 7 and 8 are draft costing requests exempt pursuant to s 34(3).

(4) Document 9 is a draft NPP exempt pursuant to s 34(1)(d) and (3).

(5) Document 10 is a draft NPP exempt pursuant to s 34 (1) (d) and (3)

(6) Alternatively, documents 1 to 10 are conditionally exempt pursuant to s 47C.

23. Those contentions were made conformably with the evidence of Ms McGregor as set out in her affidavit of 8 May 2020. Significantly for present purposes it was not contended that document 4 (a draft of NPP 2) or document 10 (a draft of NPP 3) had been submitted to Cabinet for consideration so as to be exempt pursuant to s 34(1)(a)(i). Rather, these documents were each described as proposed to be submitted to Cabinet.
24. Services Australia filed an affidavit of Mr Scott Britton dated 8 May 2020. His evidence was consistent with these contentions.
25. On 25 September 2020, Services Australia filed written submissions where, inter alia, it was stated that the finalised versions of NPP 2 and NPP 3, the subject of draft documents 4, 9 and 10, were submitted to the ERC and to Cabinet.
26. On 17 June 2021, Mr Warren filed his outline of opening submissions. In it he submitted that there was an inconsistency in the case of Services Australia at [75]-[86] as follows:

C2. The “draft” new policy proposals
C2(a) The Applicant’s inconsistent case

75. Much of the case turns on the status of the “New Policy Proposals” as they are put in issue by documents 4, 9 and 10.
76. An immediate issue – which ultimately affects the potential for a fair hearing for the Respondent - arises from inconsistencies in the Applicant’s case concerning those documents.
77. The Applicant’s case as articulated in its Statement of Facts, Issues and Contentions (ASFIC) is as follows:

(a) documents not in issue but entitled by the Applicant NPPs 1, 2 and 3 are documents to which s.34(1)(a) of the FOI Act applies because each of them was proposed by a Minister to be submitted to the Cabinet and brought into existence for the dominant purpose of submission for Cabinet’s consideration (ASFIC [22]);

(b) document 4 is alleged to be a draft of NPP2;
(c) document 9 is alleged to be a draft of NPP1;
(d) document 10 is alleged to be a draft of NPP3.

78. The Applicant disavows a contention that NPP2 or NPP3 were in fact submitted to Cabinet or any Committee and rather contends that each was proposed by a Minister to be so submitted (ASFIC [22(a)] and [22(c)]).
79. By reason of redactions from its ASFIC, it is opaque upon what basis the Applicant contends that NPP2 or NPP3 was proposed by a Minister to be submitted to the Cabinet.
80. In its “further submissions” (AFS) the Applicant articulates a completely different case with respect to documents 4 and 10 and NPPs 2 and 3. At AFS [4] the Applicant contends that the final NPPs (that is NPP 2 and NPP 3) were submitted to the Cabinet and/or the Expenditure Review Committee for consideration. That submission contradicts the ASFIC.
81. Further, the repetition of that submission at AFS [7(b)] is said to be sourced in Ms McGregor’s evidence at paragraph 49 but paragraphs 49(b) and (c) (putting to one side any question of whether they will be admitted) simply do not support the further submission made at AFS [4] and [7(b)] that documents 4 and 10 were submitted to the ERC and the Cabinet for consideration.
82. The Applicant’s obfuscation of these questions must be corrected. It infects the whole of the Applicant’s case. For example, in its further submissions (AFS [12]) the Applicant contends that documents 1 to 3 and 5 to 8 contain information about NPPs that were submitted to and considered by the ERC and Cabinet. The submission can only be made good if it be the Applicant’s case that NPPs 2 and 3 were submitted to and considered by the ERC and Cabinet.
83. Further, the bulk of the Applicant’s case on s.34(3) which concerns the existence of the deliberation or decision of Cabinet must fall away to the extent that the Applicant’s case does not go as far as contending that there was any deliberation or decision of Cabinet.
84. The Applicant was twice directed to file its ASFIC and to serve it on the Respondent. On 12 May 2020 an order was made pursuant to s. 35 authorising certain redactions. That order was made on the basis of the Applicant’s submission that “the non-disclosure of the information would not disadvantage the Respondent in a material way.”
85. That submission was later falsified by the filing by the Applicant of the AFS with its consequent contradictions and obfuscation.
86. In any event a fair hearing requires service, prior to commencement of the hearing, of an unredacted ASFIC which unambiguously identifies the case which the Applicant propounds concerning NPP 2 and 3. It might also require a withdrawal of the AFS.

(Footnotes omitted.)

27. On 18 June 2021, Services Australia filed two documents. One was an amended SOFIC, which did not address the claimed inconsistency. The other was an Amended Further Submission in which it was relevantly submitted that:

(1) Documents 4 (the draft of NPP 2), 9 (the draft of NPP 1) and 10 (the draft of NPP 3) are draft versions of NPPs, the final versions of which were submitted to Cabinet and or the ERC or were proposed by the Minister to be so submitted;

(2) The final versions of documents 4, 9 and 10 were submitted to the ERC and Cabinet;

(3) The final version of document 10 was provided to cabinet Ministers in anticipation of a Cabinet meeting;

(4) The NPP the subject of document 4 was proposed by the Minister to be submitted to Cabinet for consideration and the document was prepared with that intent; and

(5) A previous submission that documents 4, 9 and 10 were each “draft versions of the final NPPs that were submitted to Cabinet and/or the [ERC] for consideration” was abandoned by reason that these words were struck through together with a supporting footnote to the affidavit of Ms McGregor of 8 May 2020 at [33]-[34].

28. The hearing before the Tribunal commenced on 21 June 2021 and Ms McGregor was cross-examined that day. She accepted that NPP 2 and NPP 3 had not been discussed or considered at a meeting of Cabinet or the ERC.
29. The evidence concluded before the Tribunal on 23 June 2021, and brief introductory closing oral submissions were put by counsel for the parties. The Deputy President directed a timetable for written closing submissions: Services Australia by 7 July 2021, Mr Warren by 28 July 2021, and for resumption of the hearing on 9 August 2021 for “final oral submissions from both parties.”
30. On 29 June 2021, solicitors acting for Services Australia sent email correspondence to the Tribunal Registrar seeking leave “to file further brief affidavit evidence” and requesting that the leave question be decided at a directions hearing. Mr Warren opposed the application.
31. On 1 July 2021, the Deputy President conducted a directions hearing at which Services Australia maintained the application to reopen and was directed to file the evidence sought to be adduced together with any further submissions.
32. On 21 July 2021, Services Australia filed submissions in support of leave to reopen, the McGregor supplementary affidavit and an application for a confidentiality order pursuant to s 35(4) of the AAT Act relating to identified paragraphs in that affidavit and the entirety of annexures SLM-1 to SLM-7. It is relevant to note that leave to reopen was sought because it was contended that the witnesses called by Services Australia: “were not able to explain the nature of the documents in issue in these proceedings as comprehensively as had been anticipated.” In part, the submission continued:

The further evidence the applicant seeks to adduce establishes beyond any real doubt that documents 4, 9 and 10 are in fact draft NPPs. It also provides further crucial details in relation to the link between documents 5, 6 and 7 and NPPs 4, 5 and 6.

33. The filed and served version of the McGregor supplementary affidavit was significantly redacted.
34. Mr Warren opposed the application to reopen and filed submissions to that effect on 28 July 2021. On 25 August 2021, during a directions hearing, the Tribunal made a direction pursuant to s 35(4) of the AAT Act, restricting disclosure of the unredacted version of the McGregor supplementary affidavit. The oral reasons of the Deputy President for doing so include:

I note that this application for confidentiality is made with respect to an affidavit being put in support of an application to reopen which would be considered to be an interlocutory application. The Tribunal is not considering an application for confidentiality which would apply to the review application itself.
The affidavit from Ms McGregor of 21 July 2021 as redacted, namely the open affidavit, describes documents including new policy proposals which I am satisfied would come within section 34 of the Freedom of Information Act which relates to Cabinet documents. Further, I am satisfied that the redacted parts of Ms McGregor’s affidavit disclose information contained within Cabinet documents or Cabinet deliberations and there should not be disclosed. I do not consider there to be any procedural unfairness in the context of this interlocutory application to reopen the case by the applicant. The respondent is aware through the un-redacted parts of Ms McGregor’s affidavit of the basis for the application to reopen, namely that there are draft documents which are substantially similar to final documents.

35. A direction was then made requiring Services Australia to file additional Tribunal documents pursuant to s 38AA of the AAT Act which was complied with on 29 September 2021. A further directions hearing occurred on 6 October 2021, at which non-publication and non-disclosure orders were made over a portion of the supplementary material filed by Services Australia and the reopening application was adjourned for hearing to 22 October 2021. On 15 October 2021, Services Australia filed an amended application to reopen its case to rely on and tender the McGregor supplementary affidavit without redaction.
36. When the application to reopen was heard on 22 October 2021, the McGregor supplementary affidavit was admitted into evidence and a confidentiality order was made over portions of it. After hearing detailed submissions, the Deputy President, prior to the luncheon adjournment, stated that he intended to make a decision upon the application that day and continued:

Subject to hearing submissions from you now, I would not intend to provide reasons for my decision at this stage, but I would include the reasons in my final reasons on the substantive matter. The issues that have been raised on the reopening application are quite complicated in law and in fact, and that does not prevent me from making a decision immediately, or I'll do it after lunch on the fact and the law, but it does prevent me providing appropriate reasons to do justice to the submissions that have been provided immediately, and my preference is to do that as part of the final reasons, and to give one set of reasons which would, as I said, include the reasons to either accept or reject the application.

37. Next followed an invitation from the Deputy President for submissions by counsel as to proceeding in that way, the result of which was somewhat inconclusive, save to observe that counsel reserved their clients’ respective review rights. On resumption after lunch, counsel for Mr Warren stated that his client’s position was that he neither consented to nor opposed the proposed course. Counsel for Services Australia agreed. The Deputy President then said:

I consider that the interests of justice are better served by allowing the application for leave to reopen. Consequently the Tribunal grants leave to the applicant to reopen its case as applied for on 15 October 2021.
The Tribunal accepts into evidence the supplementary affidavit of Leonie McGregor dated 21 July 2021 noting the order for confidentiality with respect to that affidavit made on 25 August 2021. The applicant accepts into evidence the documents marked ST29, ST30, and ST31, including their attachments, noting the order for confidentiality with respect to those documents made on 6 October 2021.
The respondent is given leave to file and serve any further affidavit evidence by a date which we will set in a moment. The respondent is given leave to cross-examine Ms McGregor, and I'll hear from Mr Brennan about any further cross-examination that might be sought.
And it's my intention that the hearing would resume on a date that's convenient to the parties and the Tribunal for that cross-examination. And then I would hear from the parties as to how the matter would then proceed in terms of that hearing, and also the provision of written submissions, which was interrupted as a result of this application to reopen.

38. Some additional evidence was filed by Services Australia on 5 November 2021. The hearing resumed on 2 December 2021. There was further cross-examination of Mr Britton and Ms McGregor. Relevantly, the cross-examination of Ms McGregor included:

Mr Brennan: ...So you cannot – you do not give evidence that NPP 3 was ever considered by the Cabinet?... I’m giving evidence to say that it is possible that it could have been, and just going back, as you know, there’s a lot of documents, so I’m just, sort of – you know, it would be my expectation that an NPP is developed for consideration by Cabinet.
You well know that is not an answer to my question, don’t you?... The document that I’m looking at, NPP 3, I think I’ve previously said all of these things, I mean, it looks like document [sic] that Cabinet could well have considered.
Yes. You do not, on your oath, tell the Deputy President that NPP 3 was considered by the Cabinet, do you?... It’s my understanding that NPP 3, when I reviewed these documents, was attached to a letter that was potentially considered by the Cabinet.
Ms McGregor, I can keep repeating the question or you can answer it. Would you like me to repeat it?... Well, I think I’ve given an answer.
Well, do you give any evidence that NPP 3 was considered by the Cabinet?... It’s my view, looking at this document, it could have been considered by the Cabinet. As to whether it definitely was, then I would probably need to go back again and consider Cabinet records.

39. When questioned about NPP 2, Ms McGregor confirmed her earlier evidence that it was a document proposed by the Minister to be submitted to Cabinet but did not distinctly say that it had been considered by Cabinet. Following the cross-examination of Ms McGregor, the Tribunal adjourned the hearing to 23 December 2021 and determined a timetable for the filing of further written closing submissions.
40. On 10 December 2021, Services Australia filed further closing submissions. When addressing the exemption that s 34(1)(a) and (d) the submission was:
    7. The applicant contends documents 4, 9 and 10 fall within s 34(1)(d) of the FOI Act because they are drafts of documents that were:

7.1. in the case of document 9:

7.1.1. submitted to the Cabinet for its consideration and
7.1.2. brought into existence for the dominant purpose of submission for consideration by the Cabinet

7.2. in the case of documents 4 and 10:

7.2.1. proposed by a Minister to be submitted to the Cabinet and
7.2.2. brought into existence for the dominant purpose of submission for consideration by the Cabinet.

41. What was at least clear from this submission is that Services Australia did not contend that documents 4 and 10 were drafts of documents that had been submitted to Cabinet. When the hearing resumed on 23 December 2021, the order of addresses commenced with counsel for Services Australia, followed by counsel for Mr Warren and then counsel for Services Australia was invited to reply. During reply, and towards the end of the it, counsel submitted that documents 4 and 10 were drafts of documents that had been submitted to Cabinet. In part, the submission was:

The ninth point, Deputy President, relates to documents 4 and 10, and I'll just spend a minute on this because it's an important aspect of the case. ... Finalized [sic] versions of MPP's [sic] 2 and 3 were not ultimately submitted to either Cabinet or the ERC committee. But documents referred to in SLM4, 5 and 6 were submitted to a committee of Cabinet. Documents 4 and 10 are virtually identical to these documents that were submitted, as is explained in paragraphs 15 to 17 of exhibit 9A. We submit that was consistent with Ms McGregor's oral evidence and the confusion, if you like, arises because finalized [sic] versions of MPP2 [sic] and 3 did not ultimately find their way back to the Cabinet. That does not mean that earlier versions or drafts did not. And documents 4 and 10 are drafts of the earlier drafts and protected for that reason. If Ms McGregor in her oral evidence to any extent has misunderstood what happened or her evidence is inconsistent with her later affidavit - we don't think it is, but if there's anything in there that is not consistent, we submit that the clear objective contemporaneous direct evidence contained in SLM4, 5 and 6 provides clear indication of what happened and should be preferred to Ms McGregor's oral evidence about her understanding of what occurred in relation to those processes.

42. Thereafter, counsel for Mr Warren sought leave to put two further submissions, of which the second addressed documents 4 and 10 and the evidence of Ms McGregor. He said:

The other (indistinct) on what Mr Berger has put on his point 9 of the possibility of Ms McGregor qualifying or contradicting their oral evidence - I say if that's the conclusion you come to, then I urge upon you that you will reconsider the extent of the leave given to reopen. That there ought not to - the Commonwealth ought not be permitted to reopen, to put in issue the unambiguous very clear evidence that Ms McGregor gave. Very different issues on the reopening would arise if the application had been on the basis of, well our witness in fact has given evidence which we now wish to qualify. And so I don't have anything further than that, but I do say that's an important question to ask, that second question.

43. The Deputy President then reserved his decision, which he ultimately published on 2 December 2022.

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] FCA 242; (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.

THE APPEAL

70. Mr Warren’s amended notice of appeal identifies nine questions of law in support of five grounds. The grounds provide:
    1. The Learned Deputy President erred in accepting into evidence and relying upon the affidavit of Leonie McGregor sworn 21 July 2021 and Supplementary T Documents T29 and T30 at decision paragraphs [66], [68], [80], [90], [91], [92], [97], [98], [99], [105], [107], [108], [109], [110], [120] and [122] consequent upon his order on 22 October 2021 that the Respondent would be permitted to reopen her case (Reopening Order) in circumstances in which an order had been made on 25 August 2021 suppressing the content of that affidavit upon which the Deputy President relied (Suppression Order), including from the Applicant and his legal advisers when:

a. The Tribunal failed to give reasons for the Reopening Order

Particulars

The order was made at T59.30 – 35 of 22 October 2021.
The statement at T59.25 – 28 did not constitute a statement of the reasons for decision within the meaning of s. 43(2A) of the Administrative Appeals Tribunal Act 1975 (AAT Act)
No other reasons have been given for the Reopening Order.

2. In making the Reopening Order the Tribunal failed to evaluate submissions of substance.

Particulars

Applicant’s written submissions on reopening of 28 July 2021
Applicant’s written supplementary submissions on reopening of 20 October 2021
Applicant’s oral submissions on reopening at T20.15 -52.2 and 59.6 – 18 of 22 October 2021

100. By the Reopening Order, the Respondent was permitted to conduct her case as found at Decision paragraphs [88] to [92] by adducing confidential evidence from Ms McGregor which expressly contradicted oral evidence given by her in open hearing and which contradicted the case as run by the Respondent and to which the Applicant had had an opportunity to respond and thereby:
     1. Proceeded in breach of the rules of procedural fairness;
     2. Acted legally unreasonably when, having made the Suppression Order, the Reopening Order was made without consideration of the effects as found at Decision paragraphs [88] to [92].
     4. In oral closing submissions the Applicant applied for the Reopening Decision to be revoked in the event that the evidence was to the effect as found at Decision paragraphs [88] to [92] and the Tribunal:
        1. Failed to consider that application and thereby breached the rules of procedural fairness;
        2. Failed to evaluate a submission of substance to that effect; and
        3. Failed to give reasons for not revoking the Reopening Decision.

2. The Learned Deputy President erred at Decision paragraphs [36], [37], [69], [77], [83], [95], [96], [100], [101], [109], [116], [122], [138], [148], [153] in accepting into evidence and relying upon the evidence of Scott Britton as to the purposes of other officers of the Respondent’s Department in creating the documents in issue when:
   1. At Decision [37] the Tribunal accepted the evidence on the basis that if it were unfair to do so that would be addressed as a matter of weight, and the Tribunal did not further consider whether reliance on the evidence was unfair;
   2. Contrary to Decision [37] the opportunity to cross examine Mr Britton as to the purpose of those officers did not provide an opportunity to test the evidence as to those officers’ purpose;
   3. The Tribunal failed to evaluate a submission of substance to the effect that Mr Britton’s evidence was unreliable.

Particulars

Applicant’s written closing submissions dated 17 December 2021 at [82] to [92].

3. The Learned Deputy President erred at Decision [13], [132], [140], [148] and [164] in reasoning that to disclose information which is contained in, or similar to, information which is in a document which is submitted to Cabinet is to disclose a cabinet deliberation within the meaning of s. 34(3) of the FOI Act when:
   1. the reference to “deliberation” in s. 34(3) is limited to the actual deliberation that takes place in the Cabinet; and
   2. the Learned Deputy President failed to evaluate submissions of substance to that effect.

Particulars

Applicant’s written opening submissions dated 17 June 2021 at [19] – [21] [93] – [98] [123] – [124] [132] – [134]
Applicant’s written closing submissions dated 17 December 2021 at [21] to [27]

4. The Learned Deputy President erred at paragraph [192] of the Decision in reasoning that the existence of a Cabinet deliberation would not be officially disclosed within the meaning of s. 34(3) unless the substance of the deliberation had been officially disclosed when:
   1. It was sufficient that the fact that Cabinet had deliberated on the matter had been officially disclosed, and the official disclosure that the Government had made the budget decisions the subject of its deliberations as found at Decision [218] was such a disclosure; and
   2. The Learned Deputy President failed to evaluate a submission of substance on the question.

Particulars

Applicant’s written opening submissions dated 17 June 2021 at [22] [44] – [68] [99] – [106] [125] – [126]
Applicant’s written closing submissions dated 17 December 2021 at [28] [29] and [128] to [136]

5. The Learned Deputy President erred at Decision paragraphs [257] to [259] in assessing the public interest in disclosure of documents 1 to 10 by:
   1. Failing to take into account that the disclosure would have promoted the objects of the FOI Act in s. 3(2)(3) and (4) when each of those matters was a mandatory relevant consideration by reason of s. 11B(3)(a) of that Act;
   2. Failing to take into account that the respondent had accepted that documents 5 and 6 were not exempt under s. 34(3) of the FOI Act and assessing whether access to those documents would be contrary to the public interest on the erroneous basis that those documents:
      1. contained information that was contained in, or similar to, information in a document that had been submitted to Cabinet; and
      2. would reveal Cabinet deliberations if disclosed.

Particulars

Decision, [157], [202]-[204], [217], [219]-[221], [223], [225], [233], [253], [255], [259]-[260]

100. Failing to evaluate a submission of substance on the matters favouring disclosure.

Particulars

Applicant’s written opening submissions dated 17 June 2021 at [69] – [73] [109] – [120]
Applicant’s written closing submissions dated 17 December 2021 at [182] to [188]

4. Failing to balance the matters favouring disclosure against the factors favouring confidentiality and failing to evaluate a submission of substance on that balancing.

Particulars

Applicant’s written closing submissions dated 17 December 2021 at [189] – [203]

71. Although these grounds raise many issues for determination, it is only necessary to resolve parts of grounds 1, 3 and 4 which are determinative of the appeal: Boensch v Pascoe [2019] HCA 49; 268 CLR 593 at [7]- [8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ).

Ground 1

72. This ground raises the following issues:

(a) Did the Tribunal fail to give reasons for permitting Services Australia to reopen its case?

(b) If so, did the obligation to give reasons at s 43(2) of the AAT Act extend to giving reasons for that determination?

(c) If so, did the Tribunal discharge that obligation?

(d) Did the Tribunal fail to evaluate the submissions opposing a grant of leave to reopen?

(e) If so, was that an error of law?

(f) Was the decision to allow additional confidential evidence as contained in the McGregor supplementary affidavit which contradicted her oral evidence in open hearing (and which was contrary to the case of Services Australia presented to that point):

(i) a breach of the rules of procedural fairness?

(ii) a legally unreasonable decision because it was made without consideration of the effect of the evidence?

(g) By failing to revoke the decision to permit Services Australia to reopen its case as requested by Mr Warren, did the Tribunal err in law by:

(i) Failing to consider that application and thereby denying him procedural fairness?

(ii) Failing to evaluate a submission of substance to that effect; and /or

(iii) Failing to give reasons for not revoking the decision?

Ground 1(a)

73. This ground concerns issues (a) and (b).
74. The application to reopen was a hard-fought contest, as I have detailed above
75. Mr Warren submits that the Tribunal’s failure to give reasons for the decision to allow Services Australia to reopen was an error of law because the Tribunal failed to give “sufficient reasons” for the decision: s 43(2)-(2B) of the AAT Act; Montenegro v Secretary, Department of Education [2020] FCAFC 210; 281 FCR 346 at [41]- [42] (Flick J). When that submission was developed orally, it was put that because the decision to grant leave to reopen “was so central to the decision ultimately arrived at” that the Tribunal was required to provide the reasons for doing so in its ultimate decision: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [69] (Gummow J); Colonial Mutual Life Assurance Society Ltd v Donnelly [1998] FCA 364; (1998) 82 FCR 418 (CML) at 432 (Wilcox, O’Connor and Sackville JJ).
76. In contrast, Services Australia submits that the AAT Act does not oblige the Tribunal to give reasons for procedural directions (SZGUR at [32], [69] and BVD 17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [16] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) and, in any event, brief ex tempore reasons were given on 22 October 2021.
77. Section 43 of the AAT Act relevantly provides:

Tribunal must give reasons for its decision

(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

(2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

78. In context, this obligation immediately follows s 43(1), by which the Tribunal may exercise the powers and discretions conferred upon the person who made the decision under review and is obliged to “make a decision in writing” that varies the decision under review or which sets it aside and substitutes another decision for it or remits the matter for reconsideration. This arrangement of the provisions suggests that it is the decision made pursuant to s 43(1) that engages the obligation to give reasons, rather than anterior procedural decisions.
79. Montenegro does not assist the argument. The passages relied on in the decision of Flick J summarise certain principles relevant to the content of the obligation of the AAT to provide reasons when a decision is made pursuant to s 43(1) of the AAT Act. The decision of this Court in CML is readily distinguishable as it concerned the content of the obligation to give reasons for evidentiary decisions in the course of a trial by court and a dispute about the admissibility of a transcript of examination of a bankrupt under s 81 of the Bankruptcy Act 1966 (Cth).
80. In SZGUR the Court was concerned with the review power of the Refugee Review Tribunal at s 427 of the Migration Act 1958 (Cth) and the content of the obligation to give reasons for a decision pursuant to s 430. In the course of conducting a review, a migration agent made a request that the Tribunal arrange for an independent assessment of the mental health of the applicant “if required”. Section 427(1)(d) permitted the Tribunal to require the Secretary of the Department to arrange for the making of investigations or medical examinations that the Tribunal thought necessary to undertake the review. The Tribunal did not exercise that power and did not explain why when it published a written decision in which it affirmed the decision to refuse the application for a protection visa. The High Court overturned the decision of a single judge of this Court (SZGUR v Minister for Immigration and Citizenship [2010] FCA 171; 114 ALD 112) and held that s 430 did not in the circumstances require the Tribunal to state in its written reasons why it had declined to exercise the requested power. The argument in the High Court focussed on whether the Tribunal committed jurisdictional error by failing to consider whether it should use the statutory power to require a medical assessment.
81. Mr Warren emphasises the reasons of Gummow J commencing at [69]:

The question whether the inference should have been drawn in the present case can only be addressed in the setting provided by the Migration Act, and in particular by reference to the requirement in para (b) of s 430(1) that the Tribunal provide a written statement which sets out the reasons for the decision. Contrary to the reasoning in the Federal Court, para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. The obligation under s 430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal’s reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based. Section 430(1) deals with the latter in paras (c) and (d); it does not deal with the former. The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its “decision on a review”. There may be situations where a procedural decision forms part of the Tribunal’s “reasons for the decision” under para (b), but that is not so here.
(Footnote omitted.)

82. The last sentence of that paragraph might be thought as lending support to Mr Brennan’s submissions.
83. Similarly, French CJ and Kiefel J at [32] said:

...
Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The Tribunal’s consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to “get any information that it considers relevant”, is neither evidence nor material nor a fact upon which the Tribunal could base any findings or its ultimate decision.

84. Justices Heydon and Crennan each agreed with French CJ and Kiefel J and with Gummow J.
85. On one view that analysis supports Mr Warren’s appeal because the decision to grant leave to reopen permitted Services Australia to adduce evidence which the Tribunal then relied on in finding that documents 4 and 10 were exempt under s 34, thereby engaging the obligation to say why as part of its reasons given pursuant to s 43(1) of the AAT Act. There are, however, two distinct difficulties in reasoning to that conclusion in this case.
86. The first is that the decision to grant leave to reopen was not one to affirm, vary or to set aside the decision of the Information Commissioner made in discharge of the obligation at s 43(1) of the AAT Act. Put another way, it is by the exercise of the powers and discretions conferred by relevant enactments on the person who made the decision under review, that the Tribunal makes a decision to affirm, vary or set aside the primary decision. In discharging that obligation, the Tribunal must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. In the analogous context of s 473EA(1) of the Migration Act (which requires the Immigration Assessment Authority to make a written statement that sets out its review decision and the reasons therefor), the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) in BVD17 stated at [16] that the obligation to give reasons “supports two conclusions about which there is no dispute in the appeal” and continued:

One is that the decision of the Authority on the review to which s 473EA refers is the ultimate decision of the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such directions or recommendations as are permitted by regulation. The other is that the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3).

87. The High Court dismissed the appeal from the Full Court of this Court: BVD 17 v Minister for immigration and Border Protection [2018] FCA 114; 261 FCR 35 (Flick, Markovic and Banks-Smith JJ). In the Full Court, after setting out s 25D of the Acts Interpretation Act 1901 (Cth) (which provides that when an Act requires a Tribunal, amongst others, to provide written reasons, the reasons must set out the findings on material questions of fact and refer to the evidence or materials on which they are based) the Court said of this provision at [48]:

That definition does not require the Authority to set out reasons as to an exercise of its discretion, such reasoning not being of itself a finding, evidence or a material fact.

88. That reasoning is directly in point here.
89. The second is that the Tribunal provided oral reasons for granting leave to reopen on 22 October 2021: that the “interests of justice are better served by allowing the application for leave to reopen”. Section 43(2) of the AAT Act permits the Tribunal to give reasons “either orally or in writing for its decision.” It is only a decision that determines the review pursuant to s 43(1) that must be in writing. Despite the Deputy President stating that he would “include the reasons in my final reasons on the substantive matter”, that representation cannot be taken as engaging the statutory obligation where it did not otherwise apply and it does not form part of Mr Warren’s appeal that this representation gave rise to an entitlement to have those reasons as a matter of procedural fairness (as distinct from the contention that the failure to consider the application that the grant of leave to reopen be revoked was a breach of that character).
90. For these reasons ground 1(a) fails.

Ground 1(b)

91. This ground concerns issues (d) and (e).
92. Mr Warren’s contention is that the Tribunal failed to evaluate several submissions of substance, in writing and orally, to the effect that there had not been any “inadvertent error” or “mistaken apprehension as to the facts” by Services Australia or its lawyers to justify reopening of the case.
93. A failure to consider and determine a submission of substance is capable of amounting to jurisdictional error where it amounts to a breach of the obligation to afford procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ); Plaintiff M1/2021v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ). Justice Thawley very usefully summarised the cases and principles that apply in National Disability Insurance Agency v KKTB, by her Litigation Representative CVY22 [2022] FCAFC 181. Although his Honour’s ultimate conclusion was a minority one (cf Mortimer and Abraham JJ), there was no difference of opinion on the principles. I set out and regard as correct his Honour’s summary at [163], save for propositions (7) and (8) which are not presently relevant:

(1) The obligation to afford procedural fairness includes an obligation to evaluate a submission of substance: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at [75]. Put another way, an opportunity to be heard extends beyond an opportunity to make submissions; it requires that a decision-maker hear and take the submissions into account: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [389]; Khawaja v Attorney-General (Cth) [2022] FCA 334 at [93].

(2) Further, leaving procedural fairness aside, the statutory obligation on the part of the Tribunal to conduct a review of an application made in accordance with s 103 of the NDIS Act requires evaluation of submissions of substance made in the review – see, in a different statutory review context: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [44], [49], [50]; SZSSC at [76].

(3) The evaluation referred to in (1) and (2) above must be a real evaluation. The decision-maker must engage with the submission of substance. I note in this regard the words of caution in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [26]. The degree to which a particular administrative decision maker must evaluate submissions depends on the particular statutory context and the length, clarity and relevance of the submissions – see, in a different statutory context: Plaintiff M1 at [25].

(4) A failure to afford procedural fairness and a failure to conduct a review of the kind required by statute both found a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [202].

(5) Where such an issue is raised on a s 44 appeal, as it is here, the role of the Court is to determine the lawfulness and not the merits of the decision. An assessment of whether a decision-maker has genuinely engaged with a submission must not devolve into an examination of the merits or whether the outcome is thought to be correct.

(6) If the Court concludes that a submission of substance was ignored, then error will generally be established because there is likely to have been a denial of procedural fairness or a failure to conduct the review contemplated by the statute. If the submission was not ignored, it is more difficult to establish error. This is because the acceptance or rejection of submissions, or the particular weight to be given to a particular matter, are matters for the decision-maker and generally go to the merits rather than the lawfulness of the decision: Donohue v Westin [2022] VSC 37.

94. A difficulty with this ground is that the inference Mr Warren contends for is not one to be drawn lightly (Carrascalao v Minister for Immigration and Border protection [2017] FCAFC 107; 252 FCR 352 at [48] per Griffiths, White and Bromwich JJ) and the competing inference that is open is that the Tribunal did not consider the submissions to be material (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] per Gleeson CJ; [69] per McHugh, Gummow and Hayne JJ). In this case that difficulty is more acute in light of my conclusion that the Tribunal was not obliged by s 43 of the AAT Act to give written reasons for the procedural decision to grant leave to reopen: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50: 258 CLR 173 at [25] (French CJ, Bell, Keane and Gordon JJ).
95. Balanced against those matters, however, is the point made in Plaintiff M1 at [25] that “the requisite level of engagement” varies “according to the length, clarity and degree of relevance of”, in that case the representations, in this matter Mr Warren’s detailed written submissions of 28 July 2021, 20 October 2021 and the oral submissions as put by counsel on 22 October 2021. Within the written submissions counsel for Mr Warren articulated at length the legal principles that inform the discretion to grant leave to reopen a case, the procedural history, the disadvantage caused to Mr Warren by reason of the confidentiality orders and why each contention of Services Australia should be rejected. Counsel did not shirk from those submissions in oral argument.
96. Correspondingly, Services Australia relied on detailed written submissions of 21 July 2021, the amended application to reopen and supplementary submissions each dated 15 October 2021 as well as oral submissions as put by its counsel on 22 October 2021.
97. The respective submissions and evidence for and against raised multiple questions of some complexity of fact and law which required resolution as the foundational material for the proper exercise of the discretion to grant leave. The issues exposed for consideration by the Tribunal difficult questions relating to, inter alia, the principles that guide an application to reopen the evidence in a case before the Tribunal, whether the factual basis for the application had been made out, whether it was correct to invoke and rely on considerations of public interest in the correctness of government decision-making, the scope of the application, whether there had been an advertent decision not to call several witnesses at the hearing, an asserted failure to provide a satisfactory explanation why the supplementary documents annexed to the McGregor supplementary affidavit had not earlier been produced pursuant to procedural orders (and whether the failure to do so was because of a deliberate forensic choice) and how inconsistencies in the evidence of Services Australia could be reconciled. The question of prejudice was writ large in the competing submissions. Services Australia in its written submission of 21 July 2021 addressed the question of prejudice in two paragraphs as follows:

The applicant accepts the respondent should be given a reasonable opportunity to put on any further evidence in reply and may, if he wishes to do so, again cross-examine Ms McGregor. If this opportunity was given to the respondent he would be put in no worse position than he would have been in if this evidence had been adduced prior to the hearing of this matter.
Conversely, if the applicant's application for leave to adduce further evidence is refused documents it contends are Cabinet documents which would, if disclosed, reveal Cabinet deliberations could be held to not be exempt from disclosure on the basis of a clearly incomplete account of relevant matters. In light of the evidence before the Tribunal about the importance of maintaining Cabinet confidentiality (see Ms McGregor's affidavit at [43]-[46] and T100-101, T123 lines 36-39 and T124 line 43) the applicant submits this would be a very significant detriment and it is not in the interests of the administration of justice for such detriment to be visited upon it in the circumstances referred to above.

98. Mr Warren, in his written submission of 28 July 2021, contended that Services Australia “was well alive to the issues and it made the forensic choice to run a case which it now accepts ... was likely fundamentally flawed” and continued:

Further, the applicant in this Tribunal ran before the Information Commissioner a case which it admits was false and thereby avoided the Commissioner investigating the issues now in play. Had the applicant conducted itself with candour and accuracy before the Information Commissioner it may be that either the application to this Tribunal would have been unnecessary or the respondent would have been persuaded by the Commissioner’s investigation and conclusions as to the exempt status of documents 4, 9 and 10.
Any prejudice to the applicant is to be assessed in that context: it has brought its difficulties upon itself by running a case which, in retrospect it now sees as too cute and did so in the context of its earlier unexplained delinquency which, had it not occurred, might have avoided this proceeding all together.

99. Thus, each party accepted that the issue of prejudice was relevant and required resolution in order to exercise the discretion according to law. The Deputy President, with respect, simply failed to engage with it, amongst the many other substantial issues that the parties had raised for consideration. Unquestionably, Mr Warren clearly articulated multiple submissions of substance which required resolution in order to exercise the discretion that Services Australia applied to engage. In these circumstances the Tribunal was in my view obliged to engage with and evaluate the submissions of Mr Warren in opposition to the application in order to resolve it. The failure to do so deprived Mr Warren of the procedural fairness that he was entitled to. That amounts to jurisdictional error.
100. For these reasons, ground 1(b) succeeds.

Ground 1(c)

101. Mr Warren’s first contention in this ground is that the Tribunal proceeded in breach of the rules of procedural fairness in receiving and making findings in accordance with the evidence contained in the McGregor supplementary affidavit, which evidence materially altered the case that Services Australia had advanced concerning documents 4 and 10, when the change was not fairly notified to him so that he could respond.

How the issue arises

102. To understand why it is said that procedural fairness was denied, the following matters from the procedural history before the Tribunal should be emphasised.
103. Services Australia framed the issues before the Tribunal initially in accordance with the SOFIC dated 8 May 2020. It contended that documents 4 and 10 were drafts of documents (NPP 2 and NPP 3, respectively), that were exempt under s 34(1)(d) because each was a draft of a document proposed to be submitted by a Minister to the Cabinet and was brought into existence for the dominant purpose of submission for consideration by the Cabinet. The affidavit of Ms McGregor of 8 May 2020 contained evidence consistent with that contention. On 25 September 2020, Services Australia filed a submission with the Tribunal, which it described as supplementing “the submissions” made by it in the SOFIC. At para 7(b) Services Australia submitted that the final NPPs the subject of documents 4 and 10 “were submitted to the ERC and the Cabinet for consideration”. Mr Warren drew attention to the inconsistency in the position of Services Australia in his outline of opening submissions of 17 June 2021. He contended that Services Australia had articulated a “completely different case” as to whether documents 4 and 10 were submitted to Cabinet or to the ERC. He asserted that “it infects the whole of” Services Australia’s case.
104. Without addressing the inconsistency, Services Australia on 18 June 2021 filed an amended SOFIC, which maintained the initial contention that documents 4 and 10 were drafts of NPPs that were proposed to be submitted to Cabinet or the ERC for consideration. On the same day, Services Australia filed an “Amended Further Submission” in which it was said that documents 4 and 10 were each draft versions of an NPP “that were either submitted to the Cabinet and/or the [ERC] for consideration, or proposed by the Minister to be so submitted”, the NPP the subject of document 4 “was proposed by the Minister to be submitted to the Cabinet for consideration, and the document was prepared with that intent” and “the final version of Document 10 was provided to Cabinet Ministers in anticipation of a Cabinet meeting”. Accordingly, it was contended that these documents were exempt pursuant to s 34(1)(d).
105. The evidence of Ms McGregor given under cross-examination on 22 June 2021 did not support those submissions. Nor did the evidence of Mr Britton. The application for leave to reopen by Services Australia was first made on 29 June 2021. In support of the application, on 21 July 2021, Services Australia filed the McGregor supplementary affidavit. Mr Warren received a heavily redacted version of it. To the extent disclosed to Mr Warren, that affidavit did not assert that NPP 2 or NPP 3 were in fact submitted to Cabinet or to the ERC. On 25 August 2021, the Tribunal made an order pursuant to s 35 of the AAT Act suppressing substantial portions of the McGregor supplementary affidavit, including SLM-1 to SLM-7.
106. Despite the opposition of Mr Warren the Tribunal, on 22 October 2021, granted leave to Services Australia to reopen its case and to rely upon the evidence contained in the unredacted version of the McGregor supplementary affidavit. When the hearing resumed on 2 December 2021, Ms McGregor gave equivocal evidence under cross-examination as to whether NPP 2 and NPP 3 were submitted to Cabinet or to the ERC for consideration. On 10 December 2021, Services Australia filed written closing submissions and did not contend that documents 4 and 10 were drafts of NPPs that were submitted to Cabinet or the ERC for consideration, rather that each was proposed by a Minister to be so submitted and were brought into existence for that dominant purpose.
107. The case of Services Australia altered during oral closing submissions on 23 December 2021, when counsel submitted that documents 4 and 10 were drafts of NPP 2 and NPP 3, the finalised versions of which were submitted either to Cabinet or to the ERC for consideration and that any inconsistency in the oral evidence of Ms McGregor should be resolved by reference to the confidential attachments to the McGregor supplementary affidavit which documents provide “clear objective contemporaneous direct evidence contained in SLM 4, 5 and 6 [and which] provides clear indication of what happened and should be preferred”.
108. In response, Mr Warren submitted that if the Tribunal were to conclude that Ms McGregor had given contradictory evidence, then the decision to grant leave to reopen should be reconsidered. Although counsel did not seek leave to further cross-examine Ms McGregor, he did submit that: “very different issues on the reopening would arise if the application had been on the basis of, well our witness in fact has given evidence which we now wish to qualify”.
109. Despite that submission, the Tribunal in its reasons published on 22 December 2022, did not reconsider the grant of leave to reopen. The Tribunal noted that the case of Services Australia was that documents 4 and 10 were drafts of NPP 2 and NPP 3, neither of which were submitted to Cabinet or to the ERC, noted the inconsistency in the evidence on that question and the change in position as submitted by counsel for Services Australia on 23 December 2021. Despite these matters, the Tribunal then found that finalised versions of NPP 2 and NPP 3 were submitted to and considered by the ERC: TD [88]-[91], [109]-[110]. In making that finding, the Tribunal was conscious of the difficulties faced by Mr Warren in not having access to all of the material in the McGregor supplementary affidavit because of the confidentiality orders earlier made: TD [105].

Parties’ submissions

110. Mr Warren’s basal complaint of procedural unfairness is that the Tribunal permitted Services Australia to materially alter its case by reliance on the evidence contained in the McGregor supplementary affidavit without requiring Services Australia to clearly articulate the change (or by undertaking that task itself) which deprived him of any fair opportunity to respond. Mr Warren submits that Services Australia conducted its case to the point of final oral closing submissions on the basis that documents 4 and 10 were not drafts of NPPs that were finalised and submitted to Cabinet or the ERC. Services Australia carried the onus of proof to establish that the documents were exempt pursuant to s 61(1)(a). At the very least, Mr Warren was entitled to know how Services Australia put its case to respond to it and to test the opposing evidence. In a practical sense, he was deprived of that opportunity.
111. Services Australia submits that the procedural fairness obligation at s 39 of the AAT Act is expressly subject to s 35 and that, when a non-disclosure order is made, there is no failure to afford procedural fairness which attends the implementation of the order: Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16 at [43] (Moore, Jacobson and Nicholas JJ). Acknowledging the alteration in the case, Services Australia nonetheless submits that Mr Warren has not established that the admission of the confidential evidence caused him practical injustice: Re Minister for immigration and Indigenous Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ). That submission is put in three ways: (1) it cannot be concluded that the Tribunal failed to have regard to the submission that it should reconsider the grant of leave to reopen; (2) the Tribunal separately determined documents 4 and 10 were exempt being documents that were proposed by the Minister to be submitted to Cabinet for its consideration (TD [109]-[110]) and were also exempt under ss 34(3) (a document that contains information the disclosure of which would reveal a cabinet deliberation or decision) and 47C (the conditional public interest exemption for documents that would disclose deliberative matter) (TD [132], [219], [225, [229, [236], [260]); and (3) the Tribunal did not accept Mr Warren’s contention that the documentary evidence was inconsistent with the oral evidence of Ms McGregor.
112. In response to the no practical injustice contention, Mr Warren (pursuant to a grant of leave) filed a further reply submission, some of which was contested in later correspondence from the Australia Government Solicitor acting for Services Australia. Putting aside the controversial matters, Mr Warren submits as follows. If he had been alerted to the change in the case, then he would have undertaken a forensic examination of the chronological relationship between the creation of the costing documents (documents 2, 3 and 9) that were attached to a letter from Minister Porter to the Prime Minister dated 18 November 2015 and then submitted to the ERC on 23 November 2015 with each draft of NPP 2 and NPP 3. There was evidence before the Tribunal that documents 4 and 10 were dated 18 November 2015, which the Tribunal accepted at TD [85] and [152]. Mr Warren was unaware of evidence in the McGregor supplementary affidavit that NPP 2 and NPP 3 (of which documents 4 and 10 were earlier drafts) were attached to Minister Porter’s letter and were submitted to the ERC on 23 November 2015 and considered by it on 25 November 2015. If those facts had been disclosed, Mr Warren could have tested through cross-examination and examination of document meta data whether documents 4 and 10 were created before or after NPP 2 and NPP 3. If Mr Warren had established that each post-dated NPP 2 and NPP 3, then the findings made by the Tribunal at TD [98]-[99] that documents 4 and 10 were drafts of each NPP, would likely not have been made.
113. On the same basis, Mr Warren could have tested the case of Services Australia that, by application of each limb of s 34(1)(a) when read with s 34(1)(d), documents 4 and 10 were drafts of NPP 2 and NPP 3. The undisclosed alteration to the case, on Mr Warren submissions, deprived him of “a realistic possibility of a different outcome”: Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at [1] (Kiefel CJ, Keane and Gleeson JJ).
114. Mr Warren further submits that “there is a very real prospect that several related findings” would not have been made by the Tribunal if he had been on notice of the change in the case. Specifically, the Tribunal accepted evidence from Ms McGregor that an NPP is not prepared for a purpose other than to inform Cabinet deliberations: TD [61]-[62], [76(e)], [83], [112], [114] and [115(e)]. Exploration through cross-examination of the chronology of the creation documents 4 and 10 and the correlation with the date of creation and modification of NPP 2 and NPP 3, together with the related costings documents, may have resulted in evidence that there had been a departure from the usual practice so as to undermine the findings made by the Tribunal on that question. A challenge would also have been open to the proposition, accepted by the Tribunal at TD [133]-[140] and [202], that documents 2 and 3 were “fed into” versions of NPP 2 and NPP 3. The submission is that if Mr Warren had successfully challenged that evidence by, for example establishing that documents were created after the ERC meeting on 25 November 2015, those documents would not have revealed the deliberations of the ERC, contrary to the contention of Services Australia that documents 2, 3, 4 and 10 (each of which post-dated the ERC meeting) would reveal the deliberations of it and were exempt pursuant to s 34(3).
115. Finally, it is said that the contention that NPP 2 and NPP 3 had in fact been submitted to and considered by Cabinet or the ERC(a matter relevant to s 34 (3) and not to the first limb of s 34(1)(a)(i)) if disclosed would have opened “a range of related factual claims” as to the basis on which Services Australia claimed that documents 2, 3, 4, 7, 8 and 10 were exempt. In particular, its case to the extent to which it was supported by the evidence of Ms McGregor and Mr Britton, whose reliability and credibility would have been probed in more detail.

Consideration

116. Section 39 of the AAT Act provides:

Rights of parties to present case--Divisions other than Security Division

(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

(2) This section does not apply to:

(a) a proceeding in the Security Division to which section 39A or 39BA applies; or

(b) the agency party to a proceeding in the Social Services and Child Support Division.

Note: Section 39AA deals with the rights of the agency party to a proceeding in the Social Services and Child Support Division.

(3) This section does not limit subsection 25(4A) (Tribunal may determine scope of review).

117. This provision is not an exhaustive statement of the Tribunal’s obligation to afford procedural fairness: cf Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ). The content of the obligation varies according to the statutory framework and the circumstances of each case: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 686-692 (Deane J). In this case, Mr Warren suffered two distinct procedural disadvantages. Unlike the Deputy President, the lawyers for Services Australia and each of its witnesses, he did not have access to the content of the documents in issue from the outset and later only had a redacted version of the McGregor supplementary affidavit, with heavily redacted versions of exhibits SLM-1 to SLM-7.
118. Mr Warren did not contend before the Tribunal that the confidentiality orders made in respect of these documents were improperly made, for example that in making the orders the Tribunal denied him procedural fairness: cf News Corp Ltd v National Companies and Securities Commission (1984) 5 FCR 88. He made no application that that the orders should be modified or set aside, even when, at least on his case, the position of Services Australia became ambiguous in reply on the final day of the hearing. As such it may be accepted that the content of the procedural fairness obligation did not oblige the Tribunal to appraise him of the evidence as contained in the confidential portions of the McGregor supplementary affidavit: Tucker at [43].
119. However, it does not follow that it was open to the Tribunal to receive the confidential evidence in the McGregor supplementary affidavit and then to make findings of fact based on it, which evidence conflicted with the way Services Australia had framed its case in the SOFIC, the amended SOFIC and the written submissions filed on 18 June and 10 December 2021.
120. The power conferred by s 35 of the AAT Act to make an order or to give directions restricting the publication or disclosure of evidence or information lodged with or given to the Tribunal at s 35(4) is affected by s 35(5) which provides:

In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

(a) that hearings of proceedings before the Tribunal should be held in public; and

(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.

However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

121. Additionally, where the proceeding concerns access to documents the subject of exemption claims under the FOI Act, the Tribunal must also proceed in accordance with s 63 of the FOI Act. That requires that, on the issue of whether it is desirable to make an order under s 35 of the AAT Act, the Tribunal must have regard to “the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate”.
122. These provisions require careful assessment and balance with the procedural fairness obligation as explained by Brennan J, when sitting as President of the Tribunal, in Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247, where evidence adverse to Mr Pochi was given in secret. At 273, his Honour observed that the power at s 35(2) of the AAT Act:“is conferred in order to do justice in exceptional cases — that is to say, where “the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public” cannot be applied”. His Honour went on to say:

To exclude a party, a further criterion must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so. The criterion is not easy to satisfy because an applicant's interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears.

123. At 274, his Honour warned against the acceptance of confidential evidence that an applicant has not had “a full opportunity to deal with”, which is adverse to interest, where “the probative force of the information must be particularly cogent if that information is to be acted upon” adding that “[t]here are notorious risks in failing to hear an opposing view.”
124. Although the material in the confidential portion of the McGregor supplementary affidavit was not adverse to the interests of Mr Warren in the same way, similar considerations apply in this case. Services Australia carried the onus of establishing the factual basis for the claim that documents 4 and 10 were exempt. Mr Warren could not test all the evidence it adduced. Significant portions of the evidence were withheld from him. The Tribunal did not have the benefit of hearing the opposing view. There was cast upon the Tribunal the forensic task of assessing evidence that was unknown to Mr Warren. Whilst the obligation to afford procedural fairness generally, when read with the requirement pursuant to s 39(1) of the AAT Act, is “significantly qualified” when a confidentiality order is made pursuant to s 35, the “basic question is whether the Tribunal has been as fair as possible given the existence and content of” the s 35 orders that were made in this case: Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 at [103] (Wilcox, Moore and Marshall JJ).
125. In Applicant S214, the issue before the Tribunal concerned whether the applicant was excluded from the definition of refugee, by Article 1F (commission of crimes) of the Convention Relating to the Status of Refugees (1951), as amended by the Protocol Relating to the Status of Refugees (1967). The Tribunal ordered, pursuant to s 35(2)(c) of the AAT Act, that certain evidence before it be suppressed and withheld from the applicant. A judge of this court dismissed an application for an order nisi for prerogative relief (prohibition, certiorari and mandamus) for jurisdictional error by denial of procedural fairness. The applicant contended that the Tribunal failed to afford to him procedural unfairness in that the Minister asserted in particulars that the applicant had committed war crimes and crimes against humanity, which particulars “were devoid of information about the nature of the case that would be put by the Minister”: at [34]. The Tribunal subsequently made findings adverse to the applicant, in part on the evidence withheld from him.
126. This Court held that the applicant was denied procedural fairness, despite the absence of a challenge to the s 35 orders, in part because the Minister had inadequately particularised the case to be met which was not remedied by the way propositions were put to the applicant in cross-examination. At [132]-[134] the Court reasoned in terms plainly pertinent to the circumstances in the present case:

Consideration of the relationship between particular actions of the appellant and concepts such as those listed in Article 1F necessarily required consideration of the pattern and totality of the appellant’s actions. The appellant was entitled to know what was going to be put against him in that regard. Therefore, he needed to know the nature, place and period of the alleged acts. It is worth recalling the well-known statement of Dixon J in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 that ‘a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge’. His Honour was speaking about a criminal prosecution, but the principle is equally applicable to a civil claim of serious import.
Even leaving aside these considerations, we cannot accept the notion of particularisation by cross-examination. A person under cross-examination is supposed to concentrate on answering the instant question, not to consider its wider context and ramifications for the person’s case, the relationship between that question and other questions put to the cross-examinee or other evidence that has been, or will be, adduced in the case.
A lawyer representing a cross-examinee may have a better chance of appreciating the case the cross-examiner is endeavouring to make. However, the primary task of a lawyer in this situation is to listen to the instant question and to consider whether it is objectionable or requires clarification in re-examination. The lawyer ought not be expected simultaneously to determine the necessity and nature of any evidence to be adduced in reply.

127. In this case, it was Mr Warren (through his counsel) who carried the burden of testing the evidence by cross-examination, impeded by not having access to the confidential evidence in the McGregor supplementary affidavit, but entitled to assume that the disclosed evidence was consistent with the SOFIC, the amended SOFIC and the written submissions of Services Australia. The case was cast in that disclosed way until the application to reopen. Despite Mr Warren’s opposition, Services Australia was permitted to reopen in reliance upon all the material in the McGregor supplementary affidavit, which was known to the Tribunal and Services Australia but not to Mr Warren. The alteration in the case relating to documents 4 and 10 was never clearly articulated and certainly not before the further cross-examination of Ms McGregor had concluded.
128. The oblique reference to the alteration, contrary to the SOFIC, the amended SOFIC and the written submissions, described as the “ninth point” in oral reply submissions at the end of a protracted and drawn-out hearing, was not a reference to some peripheral matter. Counsel characterised it as “an important aspect of the case” where the confidential evidence in the McGregor supplementary affidavit was said to address “a glaring hole” in the evidence of Services Australia. When counsel for Services Australia submitted to the Tribunal: “[w]e can see this most clearly in ST31 and paragraphs 15 to 17 of exhibit 9A, and in particular, annexures SLM 4, 5 and 6”, it is only the Tribunal and Services Australia who could see it. Objectively, that was unfair.
129. Something more needs to be said about the importance of the SOFIC and the amended SOFIC. Services Australia was directed to prepare the SOFIC which, pursuant to cl 4.31 of the General Practice Direction given under s 18B of the AAT Act, required identification of the issues in dispute, the essential facts and the contentions to be drawn from those facts. Services Australia failed to advise Mr Warren that evidence in the confidential potions of the McGregor supplementary affidavit differed materially from those facts and its contentions. There are obvious parallels between what happened in this case and the materiality of the error in Nathanson where a new issue was raised in closing submissions by the Minister, and which departed from the issues and contentions in the SOFIC in that case: in particular see the reasoning of Gordon J at [66]-[68].
130. In the circumstances of this case there was a particular need for the Tribunal to be astute to ensure that, because the confidentiality orders necessarily constrained Mr Warren in the conduct of his case, he was afforded a fair opportunity to meet and test the case of Services Australia, once it became clear to the Tribunal that the openly stated position about documents 4 and 10 had altered. Of course, Services Australia carried the primary responsibility of informing Mr Warren in a timely and straightforward manner of the variance between the pleaded and submitted case and the evidence in the McGregor supplementary affidavit, but it did not do so. That fact must have been known to the Deputy President shortly prior to the conclusion of the oral submissions on 23 December 2021 because he had the benefit of the unredacted version of the confidential affidavit to consider with the reply submission of counsel for Services Australia. However, it matters not that the Deputy President may not have immediately appreciated the content or effect of the evidence at that point as he was certainly aware of the change of case when preparing his decision and found that documents 4 and 10 were drafts of NPP 2 and NPP 3 each of which were submitted to Cabinet or the ERC. He was not prevented from resuming the hearing to appraise Mr Warren of the change and to invite submissions as to what should occur in consequence.
131. In oral argument, Services Australia answered the force of these points by two submissions. First, it was submitted that counsel for Mr Warren understood the alteration and in response submitted that, if the confidential evidence of Ms McGregor contradicted her oral evidence, the grant of leave should be revisited and revoked. Second, it was submitted that there were other grounds on which the Tribunal held documents 4 and 10 were exempt, which were not related to the evidence in the McGregor supplementary affidavit, under ss 34(3) and 47C: TD [132],[217]-[219],[225], [229], [238] and [260]. Thus, it was contended, the admission of and reliance upon the McGregor supplementary affidavit did not cause practical injustice: Lam at [37].
132. I am unable to accept these submissions. It is not to the point that counsel for Mr Warren, very late in the day, may have appreciated that the confidential evidence in the McGregor supplementary affidavit contradicted other evidence she had given, the SOFIC, the amended SOFIC and the written submissions of Services Australia. The variation ought to have been stated clearly and unambiguously before the further cross-examination of Ms McGregor so that her evidence could be fairly tested. Mr Warren was entitled to know the case he was required to meet, particularly when he was not privy to the confidential evidence.
133. The materiality submission ignores the intrinsic unfairness of what in fact occurred and fails to explain how one can disentangle the Tribunal’s reasoning and findings on this point from its separate findings as to the other grounds for exemption. Problems of this type are common enough where, as here, a decision-maker reviews all the evidence and material which is inter-related to make separate findings. This is not an example of a case where it can be confidently said that the jurisdictional error was “separate from and independent of” the findings about other grounds for exemption: cf Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [41] (Nettle J).
134. More fundamentally, the denial of procedural fairness in this case was serious and the circumstances were of the type identified in the plurality reasons of Kiefel CJ, Keane and Gleeson JJ in Nathanson at [33]:

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
(Footnotes omitted.)

See also Gageler J at [55], Gordon J at [76], [80]-[81] and Edelman J at [95].

135. Mr Warren was deprived of the opportunity of knowing what case Services Australia sought to make out on confidential evidence that he was not privy to, which evidence was at variance with that earlier adduced and tested and without being informed that the case had altered.
136. For these reasons ground 1(c) succeeds and it is unnecessary to consider the unreasonableness issue that is also raised by the ground. It is also unnecessary to consider ground 1(d).

THE BALANCE OF THE GROUNDS

137. Myconclusion on grounds 1(b) and 1(c) is sufficient to dispose of the appeal. The decision of the Tribunal must be set aside and the matter remitted to the Tribunal for rehearing according to law. That makes it strictly unnecessary to consider grounds 3–5. However, I consider that the issues of statutory construction in grounds 3(a) and 4 raise important questions that inevitably will need to be considered by the Tribunal on rehearing. Each ground was fully argued and it is in the interests of the parties and the efficient administration of justice more generally that both be determined.

Ground 3(a)

138. This ground raises the construction of what is a deliberation in s 34(3), the text of which I have set out above where the important words are whether the document 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”.
139. As I have noted, the Deputy President commenced by referencing and apparently applying the meaning of deliberation in the extracts from Sanderson, and Toomer at TD [126]-[128] (in short, the collective discussion of a matter in Cabinet, including procedural and preliminary matters), and accepted that documents prepared prior to a Cabinet meeting may disclose the subsequent deliberations of Cabinet at TD [129]. Mr Warren does not assert error in that reasoning and further accepts as a finding of fact that was open, the final sentence of that paragraph where the Tribunal found that the matters recorded in the NPPs were the subject of deliberations by Cabinet.
140. Mr Warren submits that the central error commences at TD [130] where, having correctly identified the “first step”, being a determination whether disclosure of a document will reveal a deliberation of Cabinet, the Tribunal then erred in reasoning that it was required to undertake “a comparative analysis between the information in the document and the Cabinet deliberation” and if it be concluded that the “information in the document included the matter of the Cabinet deliberation”, then the exemption applies. The error in that reasoning is that coincidence between subject matter does not establish that the document reveals what was deliberated in Cabinet. Or as put in submissions by Mr Brennan: “there’s a world of difference between disclosing the fact that Cabinet has [deliberated on a topic] and disclosing information which has in fact been exchanged by Cabinet.”
141. Mr Warren further submits that this error is repeated by the Tribunal at TD [140], where, by document comparison, there was found “a genuine connection between the information contained in the underpinning documents and the draft and final versions of the NPPs” such that disclosure of those documents would reveal the deliberations of Cabinet and similarly at TD [148] and [164].
142. The submissions for Services Australia commence by emphasising the importance of protecting open and frank discussion in Cabinet whilst maintaining collective responsibility for decisions that are made: Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 615-616. A deliberation of the Cabinet is not confined to the discussion that actually takes place in Cabinet but extends to the disclosure of information that would reveal a Cabinet deliberation – “deliberation goes to processes in Cabinet”. It is not necessary that a document quote the deliberation verbatim to be exempt. Particular emphasis is placed on the decision of this Court in Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 456; 98 FCR 31 at [42]- [43] (Black CJ, Tamberlin and Sandberg JJ) as authority for the proposition, by way of example, that it may be inferred from a draft letter between Ministers about matters sought to be raised in a Cabinet meeting that Cabinet likely deliberated upon those matters, even though the letter did not record the actual deliberation. It is further submitted that whether in a particular case a document does reveal a Cabinet deliberation is ultimately one of fact and degree, and this ground is an impermissible attempt to challenge the fact-finding of the Tribunal.
143. In my view the Tribunal erred in the construction of s 34(3). Commencing with the plain meaning of the text, the provision is confined to information that is contained in a document which would reveal a deliberation or decision of the Cabinet. And it is only to that extent that the exemption applies. This requires focus on the content of the information that is contained in the document that is claimed to be exempt. For the exemption to apply it is that information which itself must reveal deliberations or decisions of the Cabinet. The document speaks for itself on that issue. No question of comparative analysis between the document and another which does contain the deliberation or decision of Cabinet arises. The exemption applies where the document discloses what Cabinet deliberated on or decided. The exemption does not apply where the information in the document concerns a topic that was deliberated on in Cabinet. Disclosure of subject matter, usually with supporting information or recommendations, does not of itself reveal the deliberation by Cabinet on that subject or the decision that is made. A document of that type may, however, be exempt on another basis, most notably s 34(1)(a) if submitted to Cabinet for consideration, or proposed by a Minister to be so submitted, and if it was brought into existence for the dominant purpose of submission for consideration by Cabinet.
144. That textual analysis is consistent with the statutory object and legislative history, including by reference to relevant extrinsic materials. The general objects at s 3 include the importance of promoting transparency in government processes. It provides:

Objects–general

(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:

(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.

(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b) increasing scrutiny, discussion, comment and review of the Government’s activities.

(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

145. The right of access that is referenced is enacted at s 11 as:

Right of access

(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency’s or Minister's belief as to what are his or her reasons for seeking access.

146. The premise of these provisions is to strike a balance in favour of transparency, save where an exemption applies. This structure provides no warrant for expanding the ordinary textual meaning of the exemption of s 34(3) to include information contained in documents that do not on their face reveal the deliberations or decisions of Cabinet to a person who is unaware of what consideration was given to, or decision made, by Cabinet on a particular subject matter. That consideration assumes greater force where, as here, documents 4,7, 8,9 and 10 were drafts (or claimed to be drafts, in the case of documents 4 and 10) of an NPP or costing requests relating thereto. Those draft documents are quite unlikely to reveal what were the deliberations or decisions of the Cabinet upon any finalised version of an NPP that was considered by it. The Tribunal was only able to determine that information in these draft documents was deliberated on by the Cabinet by considering other documents and “joining the dots”: TD [68], [98]-[99], [146]-[148], [153] and [164]. That was a mistaken approach.
147. The Tribunal considered the legislative history of the provisions, but limited its interpretation of the official disclosure exception to the exemption at TD [178], [199]-[201]. The legislative history supports the textual meaning that I consider to be correct.
148. When first enacted, s 34(1) provided:

Cabinet documents
A document is an exempt document if it is -

(a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;

(b) an official record of the Cabinet;

(c) a document that is a copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

149. It is to be noticed that subparagraph (d) was drafted to include the disclosure of a document, rather than information contained in a document, which would involve the disclosure of any deliberation or decision of the Cabinet. Section 34(1A) was added by s 18 of the Freedom of Information Amendment Act 1983 (Cth) to provide for an exception for purely factual material:

This section does not apply to a document (in this sub-section referred to as a ‘relevant document’) that is referred to in paragraph (1) (a), or that is referred to in paragraph (1) (b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in paragraph (1) (a), to the extent that the relevant document contains purely factual material unless-

(a) the disclosure under this Act of that document would involve the disclosure of any deliberation or decision of the Cabinet; and

(b) the fact of that deliberation or decision has not been officially published.

150. The Hon Lionel Bowen MHR, then Minister for Trade, in the Second Reading Speech given in the House of Representatives on 18 October 1983 (Commonwealth Parliamentary Debates, House of Representatives, pp 1848–1850) said of this provision:

The Bill contains a number of other measures to widen the scope of the [Act]. First, the exemption for Cabinet and Executive Council documents has been narrowed to exclude from its scope documents of a purely factual character the disclosure of which would not reveal a hitherto unpublished decision of the Cabinet.

151. The Minister also noted that the Bill was drafted to give effect to recommendations made by the Senate Standing Committee on Constitutional and Legal Affairs Report on the Freedom of Information Bill 1978 (6 November 1979). In that Report at [18.7] it was observed of the Cabinet exemption then proposed at cl 24 of the 1978 Bill:

We believe that clause 24 lays down an inappropriate criterion for determining what is exempt. Essentially, the clause is designed to protect the Cabinet decision-making process. Yet, in protecting anything that is submitted or proposed to be submitted to Cabinet, it goes far beyond what is reasonably necessary for this purpose. To disclose documents of the type to which we referred in the previous paragraph is to disclose only the raw material on which the Cabinet process operates; it is not necessarily to disclose anything about Cabinet process itself. Disclosure may conceivably damage the political fortunes of those who participate in the Cabinet process, but this is essentially distinct from, and should not be confused with, the Cabinet process itself. Only the latter should be protected by the exemption.

152. The previous paragraph referenced statistical information, a study of a factual nature on the feasibility of a new policy and reports prepared by external bodies and consultants. The Committee recommendation at [18.9] was that the clause should be amended:

to limit the scope of the conclusive exemption for Cabinet documents to documents containing opinion, advice or recommendations of a policy nature, thereby excluding documents of a purely factual nature such as consultants’ reports, reports from advisory committees and so on.

153. The current version of s 34 was substituted by the Freedom of Information (Reform) Act 2010 (Cth). It is to be observed that the phrases “would involve the disclosure of” and “the fact of” that were expressed at s 34(1A)(a) and (b) were altered to “the extent that it contains information the disclosure of which” and “the existence of”. The Revised Explanatory Memorandum for the 2010 Bill relevantly stated that:

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.

154. What emerges from the legislative history is an intention over time to progressively narrow the scope of the Cabinet exemption, the justification being as expressed in the 1979 Senate Committee Report: the exemption should not extend beyond “what is reasonably necessary” for the purpose of protecting Cabinet decision-making and related processes.
155. The Victorian Court of Appeal considered a similar statutory provision in Secretary to the Department of infrastructure v Asher [2007] VSCA 17; 19 VR 17 (Buchanan, Vincent and Redlich JJA). Section 28(1)(d) of the Freedom of Information Act 1982 (Vic) provided that a document was an exempt document if: “its disclosure would involve the disclosure of any deliberation or decision of the Cabinet”. A request was made for access to documents held by a government department concerning certain assets and programs. There were documents within the request prepared in response to a direction from another government department marked “Cabinet-in-confidence”, a purpose of which was the preparation of reports for the expenditure review committee of the Victorian Cabinet. The exemption at s 28(1)(d) from production was relied on. The Victorian Civil and Administrative Tribunal determined that the documents were not exempt. The appeal to the Court of Appeal failed. The reports were not prepared for the purpose of submission for consideration by Cabinet or the expenditure review committee. Rather, they were prepared for the purpose “of providing raw material which might be used in the preparation of another document that was to be submitted for consideration” by the committee: at [3] (Buchanan JA); [40] (Vincent JA); [55] (Redlich JA)
156. Buchanan JA assumed “for the sake of argument that a document need not disclose on its face that it was considered by Cabinet” for the exemption to apply (at [4]) and then reasoned as follows at [5]-[6]:

The submissions on behalf of the appellant proceeded upon the basis that the exemption was attracted to any document which disclosed a subject matter on which Cabinet deliberated. Indeed, in their outline of argument, counsel for the appellant submitted that an agenda for a Cabinet meeting would fall within s 28(1)(a) of the Act, which exempts “the official record of any deliberation or decision of Cabinet.” In this case the reports could not disclose what, if anything, Cabinet thought of the matters canvassed in the reports or what use, if any, Cabinet made of any part of the reports. The question is whether the word “deliberation” in s 28(1)(d) includes a topic on which Cabinet deliberates or is limited to the manner in which Cabinet deals with a topic. The appellant would have it that every document placed before the Cabinet is exempt.
The word “deliberation” does not ordinarily connote the subject matter of a debate, but rather the debate itself. The principal definitions of the word in the Oxford English Dictionary are:

1. The action of deliberating or weighing a theme in mind; careful consideration with a view to decision.
2. The consideration and discussion of the reasons for and against a measure by a number of councillors (e.g., in a legislative assembly).

In my opinion the construction advanced by the appellant is strained. It takes the word beyond deliberations of Cabinet to the topic which produces Cabinet deliberations. The word is coupled with “decision”, that is, with an action taken by Cabinet with respect to a subject matter. Similarly, I think “deliberation” refers to Cabinet’s treatment of a subject matter.

157. This was not to say, as his Honour continued at [8], that the exemption cannot apply to a document containing information that is submitted to Cabinet, which he explained as follows:

It all depends upon the terms of the document. At one end of the spectrum, a document may reveal no more than that a statistic or description of an event was placed before Cabinet. At the other end, a document on its face may disclose that Cabinet required information of a particular type for the purpose of enabling Cabinet to determine whether a course of action was practicable or feasible or may advance an argument for a particular point of view. The former would say nothing as to Cabinet’s deliberations; the latter might say a great deal. In my view, in the present case the reports were in the former, rather than the latter, category. The reports revealed information about the performance and requirements of government departments, but said nothing about the deliberations of Cabinet.
(Footnote omitted.)

158. Vincent JA reasoned similarly at [50]-[52] and agreed with Buchanan JA as did Redlich JA at [55]-[59].
159. I agree with the reasoning in Asher and consider it applicable to the construction of s 34(3). Services Australia does not submit that this reasoning is wrong or is not applicable. Rather, its submission is that whether a document reveals a Cabinet deliberation or decision is a question of fact and degree, to be determined by examination of all the circumstances, conformably with the reasoning of Buchanan JA at [8]. That is so, but the submission does not address the error in the reasoning of the Tribunal at [130] (repeated elsewhere) that the exemption applies if on comparative analysis there is information in the document on a subject matter that was deliberated upon or decided in Cabinet.
160. For these reasons the Tribunal was mistaken in its construction and application of s 34(3). The exemption is a limited one. The document must itself contain information which reveals a Cabinet deliberation or decision. This is not to say that the document must quote the deliberation or decision verbatim. What must not occur to engage the exemption is, as was done here, to look at other evidence that does reveal the deliberation or decision of Cabinet and then conclude that the document in issue is itself exempt. The error in that approach is to apply knowledge derived from other information or documents to reveal that Cabinet did in fact deliberate on or decide a matter in a particular way. The mere fact that there was subsequent deliberation, or a decision taken by Cabinet, is not sufficient to establish that the document in issue contains information that reveals that deliberation or decision.
161. Accordingly, ground 3(a) succeeds.

Ground 4(a)

162. This ground concerns the exception to the exemption at s 34(3): “unless the existence of the deliberation or decision has been officially disclosed”.
163. The Tribunal construed the exception conformably with the submission of Services Australia as limited to “the official disclosure of the very information that would otherwise be exempt from disclosure”: TD [178]. It did so for reasons given at TD [192]-[193], [198]-[199] and [201] which I have set out above.
164. Mr Warren submits that the Tribunal committed four errors. First, it made a textual error in that effect was not given to the distinction between a deliberation or decision, which attracts the exemption, and the existence of the deliberation or ,which is the qualifying exception. Second, the Tribunal’s assessment of the policy or purpose at TD [190]-[191], being to protect the deliberations and decisions of Cabinet, deflected it from giving effect to the clear meaning of the statutory text. Third, at TD [199]-[201] it misinterpreted part of the Revised Explanatory Memorandum for the 2020 Amendment Bill as providing support for its textual meaning, when it plainly does not. And fourth, the Tribunal’s interpretation is at odds with the clear textual meaning in that “if the exception only operates upon the official disclosure of the contents of the deliberation, then nothing would be ‘revealed’ by the disclosure of exactly the same information”. Relatedly, Mr Warren submits that the interpretation “also strips the exception of utility because it would enable the disclosure of information only if the entirety of that information had already been ‘officially disclosed’”.
165. Services Australia, whilst acknowledging that the meaning of the provision “is unclear”, submits that the Tribunal did not err in its interpretation by proceeding from the premise that the broad purpose of s 34 is to protect Cabinet confidentiality. In its submission the “relevant disclosure of the deliberation or decision does not need to be in the form of the document in issue” and in any event submits that no matter which interpretation is applied, the outcome would have been the same in that the Tribunal found on the evidence that there had not been disclosure of the existence of Cabinet deliberations, or their substance: TD [218]. Relatedly, Services Australia also submits that the Tribunal found the relevant documents (4, 9 and 10) were also exempt pursuant to s 47C. Before the Tribunal, Services Australia submitted, as recorded at TD [178] that:

To construe the carve out in s 34(3) (and s 34(6)) as potentially disallowing the protection offered by s 34 in relation to significant information relating to Cabinet’s deliberations, or potentially even the entirety of Cabinet’s deliberations, merely because there has been official disclosure of the fact of that Cabinet deliberated on a topic would substantially undermine the work s 34 is clearly intended to do in preserving the confidentiality of the Cabinet process. For example, if the official disclosure that Cabinet had deliberated about whether to again open Australia’s borders meant a document that disclosed some or all of the information Cabinet had gathered or analysed in deliberating on this issue had to be disclosed, this would dramatically undermine the protection of the confidentiality of Cabinet’s deliberations. Given the well-recognised and long-standing public interest in preserving Cabinet confidentiality as a foundation stone of Westminster government, Parliament should not readily be assumed to have intended such a dramatic consequence.

166. I of course recognise and accept the importance of maintaining Cabinet confidentiality in our representative democracy. However, in my view, the Tribunal erred in its construction of the official disclosure exception.
167. The starting point is what is meant by official disclosure, a term that is not defined in the Act. “Official” in context must have its ordinary meaning which connotes formality; authorised or issued authoritatively (Macquarie Dictionary 3^rd ed). The obvious distinction is with the colloquial “leak” of Cabinet deliberations or decisions which is unauthorised. Of itself that distinction does not illuminate what is meant by an official disclosure of the existence of the deliberation or decision of Cabinet. I also consider that disclosure must bear its ordinary meaning of revealing, making known, uncovering. Considerable assistance is to be found in the decision of Deputy President Forgie in Sanderson at [77] and which the Tribunal set out at TD [174]:

The qualification in s 34(3) does not come into play if the “deliberation or decision” has been officially disclosed but if the “existence” of the deliberation or decision has been officially disclosed. There would seem to be a very important difference between the two. Disclosure of the substance of the deliberation or decision will disclose its existence. Disclosure of its existence, however, does not require disclosure of the substance of the deliberation or decision. Section 34(3) only requires that there be official disclosure of the “existence of the deliberation or decision” for the qualification to the exemption provided for in s 34(3) to come into play. It does not go beyond that to require official disclosure of the details of the deliberation or decision as would be the case had the words “existence of the” been omitted by Parliament.

168. I agree with that analysis. The exemption operates on the deliberation or decision of Cabinet. The exception operates on the existence of the deliberation or decision and does not require disclosure of the substance, or detail, of the deliberation or decision to operate. Thus, if Cabinet deliberates on a policy proposal to fund the construction of a new highway and the Minister responsible, with the authority of Cabinet, later announces that Cabinet has made that decision (without disclosing the detail of what was deliberated) then the existence of the decision has been officially disclosed and the exception applies.
169. Despite referencing the passage from Sanderson, the Deputy President did not apply the statutory distinction at TD [192] when he reasoned that “[i]f, 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.” That reasoning, with respect, is distinctly at odds with the statutory text which is engaged if the fact of the deliberation or decision is publicly disclosed. Relatedly, the Deputy President also erred at TD [193] when he reasoned 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”. Contrary to that reasoning, an announcement that Cabinet has decided a matter and what that decision is, of itself is a disclosure of the existence of the decision.
170. There is nothing in the legislative purpose, the statutory context or the legislative history which points to a different intended meaning. The important public interest in ensuring that Cabinet deliberations remain confidential so as to facilitate frank discussion and maintain the collective responsibility for Cabinet decisions (Northern Land Council at 615-616) are not eroded where there is official disclosure by which collective responsibility is accepted for decisions taken by Cabinet. Moreover, as Flick J explained in Fisse v Secretary, Department of the Treasury [2008] FCAFC 185; 172 FCR 513 at [99] “common law principles protecting the secrecy of the workings of Cabinet cannot be divorced entirely from s 34” and continued:

It must necessarily be recognised, however, that the [FOI Act] represents a shift in emphasis away from tendencies of secrecy in government to open government. When reviewing public interest immunity claims and the objectives of Freedom of Information legislation, it has thus been observed that “[o]pen government involves a shift from the assumption that government information is secret unless there are public interest grounds for disclosure (PII) to the assumption that all information held by government is accessible upon request unless there are public interest grounds for withholding it (FOI)”: Cossins A, “Revisiting Open Government: Recent Developments in Shifting the Boundaries of Government Secrecy under Public Interest Immunity and Freedom of Information Law” (1995) 23 FL Rev 226 at 256.

171. “[S]elf-evidently”, as Flick J further observed at [100] the objective of s 34 is “to give effect to the long-established principles of Cabinet confidentiality and to protect from disclosure the workings of Cabinet”. That objective is not undermined where there is official disclosure of the fact of the deliberation or decision taken by Cabinet on a particular subject matter.
172. The legislative history that I have essayed aligns with the essential distinction between the deliberation or decision of Cabinet, which is concerned with substance and content, and the official disclosure of the existence of the deliberation or a decision. The Tribunal reasoned at TD [199]-[201] that because the Explanatory Memorandum “refers to the deliberation or decision and not to the existence of the deliberation or decision”, that Parliament intended the exception to “operate in a way that is consistent with the objective of maintaining Cabinet confidentiality unless there has been public disclosure of that confidential information”. With respect, the fact that the Explanatory Memorandum did not reference the words enacted by Parliament, is no basis for ignoring the enacted words: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ): “extrinsic materials cannot be relied on to displace the clear meaning of the text”.
173. For these reasons, this ground succeeds.

RESULT

174. The appeal must be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for rehearing and determination according to law. There is no reason why costs should not follow the event.

I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.

Associate:

Dated: 7 June 2024