Determining a Cabinet "purpose" for Ministerial briefings - a new approach

FOI Solutions acts in important VCAT case

In a landmark decision just before Christmas 2016, the Victorian Civil and Administrative Tribunal ("VCAT") confirmed the existence of a new approach to determine whether a document was prepared for the purpose of briefing a minister in relation to issues to be considered by Cabinet under s 28(1)(ba) of the Victorian Freedom of Information Act 1982. It focuses on ascertaining the relevant "purpose" and how this can be done.

The usual approach taken in most cases considering exemption from access under this provision focus on determining the purpose for a ministerial briefing from the perspective of the person(s) commissioned to prepare the briefing. If there is an intention or expectation by the person preparing the briefing to the minister that it was for the purpose of briefing him or her in relation to issues to be considered by Cabinet, that is sufficient - even if it is not ultimately so used.

In The Foundation for Alcohol Research and Education v Department of Justice and Regulation, the VCAT confirmed that the purpose can alternatively be ascertained from the perspective of the minister, even if the minister does not communicate that purpose to the person(s) requested to provide the advice.

This is because a minister can ask for a briefing or advice in the context of an issue which the minister understood would go to Cabinet. In those circumstances the resultant brief is a document prepared for the purpose of briefing that minister in relation to issues to be considered by the Cabinet. A purpose for the preparation of the document is that a minister asked for its preparation, which in turn relates to the minister's purpose - to be briefed on an issue which the minister understood would go to Cabinet. Although this possibility was entertained in passing in a case in 1996 by the VCAT's predecessor tribunal, the VCAT confirmed the actual existence and application of this approach.

A finding of exemption under s 28(1)(ba) of the Victorian FOI Act on this basis can be made on the evidence, even if there is no direct evidence of the minister's actual subjective purpose or intention. It is sufficient that the finding as to the minister's purpose can be made by inference from the surrounding facts and circumstances of a particular case. This was illustrated by the facts in the case before the VCAT.

The document in dispute was an Advisory Council report which was requested by the former Minister to provide advice on the issue of a freeze on late night liquor trading licences in various inner city municipalities. Since at least 2011 the freeze and the development of government policy about it had occurred through the Cabinet process.

In 2011 a Cabinet sub-committee had considered at least one issue in relation to the freeze policy. In 2013, the making of Ministerial Guidelines about the freeze was preceded by a Cabinet submission by the former Minister. The 2013 Guidelines were to expire in 2015. In 2014 that former Minister had sought advice from the Advisory Council whose report was the subject of the VCAT proceeding.

The VCAT found that the former Minister, in requesting that advice, wished to be briefed on the future of the freeze after the 2013 Guidelines were to expire. The VCAT concluded (at para [42(b)]):

"Given the policy's history, the Former Minister anticipated with sufficient certainty that issue would go to Cabinet."

The VCAT also found (at para [41]):

"...the evidence supports a finding, which I make, that the Former Minister requested the [Advisory Council's] advice to brief himself in relation to issues to be considered by Cabinet and, as a result of that request, the Minister received the Advice which related to issues to be considered by the Cabinet."

It should be noted that there was evidence of a Cabinet submission going to Cabinet which contained a summary of the Advice, and of the issue of the freeze being considered by the Cabinet.

Other exemptions applied by the VCAT included s 28(1)(d) - disclosure of Cabinet deliberations - and s 30(1) - internal working documents disclosure of which is contrary to public interest.

FOI Solutions acted and Executive Director, Mick Batskos, appeared for the Department.