Relevant decisions from other jurisdictions

Millar v Department of Premier and Cabinet (General) [2011] VCAT 1230

The applicant, a journalist at the Age newspaper, sought access to documents between the Victorian Premier and/or his department and the Prime Minister and/or his department relating to:

  • the Federal Government's Carbon Pollution Reduction Scheme;
  • Renewable Emissions Target; and
  • assistance relating to Victoria's electricity generation companies under the Federal Government's Carbon Pollution Reduction Scheme.

The Victorian Department of Premier and Cabinet (Department) refused access under the equivalent provision in Victorian legislation, namely section 29(a) of the Freedom of Information Act 1982 (Vic).

The Victorian Civil and Administrative Tribunal (VCAT) found it necessary to consider the policy context in which the relevant documents were brought into existence. [16] The documents related to the controversial transition from a State Emissions Scheme to that of a Federal Scheme, and the implications for Victoria arising from that transition. In addition to these implications, there was also dialogue between the State and the Commonwealth. [16-22]

The Deputy President accepted that disclosing the relevant matter might hinder the ability of the Premier of Victoria or departmental heads to negotiate with the Commonwealth in the future, especially about matters concerning Federal policy development. In addition to this, the Deputy President accepted that disclosing written communications between senior members of government in Victoria or department heads with their Commonwealth counterparts would cause future communications to be less frank, to the detriment of important government activities in the area of policy development and reform. The Deputy President considered that each of the documents was a snap-shot of policy development in time and that disclosing matter, where the negotiations were ongoing and the Federal policy yet to be determined, could mislead the public. Further, he considered that the documents also contained information about Victoria's strategy for funding and resource allocation in dealing with the Commonwealth and disclosing this information would be to the detriment of Victoria's negotiating position. [61]

The Deputy President accepted the Department's submissions that disclosing the relevant matter would be contrary to public interest by: [62-64]

  • protecting uninhibited exchanges between the governments of Australia;
  • encouraging cooperative Federalism within Australia;
  • protecting processes that contribute to high quality policy development by the governments of Australia;
  • ensuring the public have access to accurate and reliable information that gives a true indication of the basis for government policy;
  • protecting against unnecessary confusion and debate by avoiding the premature release of documents that represent a stage in the decision—making process;
  • ensuring that the Victorian government remains able to meet private undertakings' legitimate expectations of confidentiality;
  • ensuring that private undertakings remain willing to share information with the State; and
  • protecting the State of Victoria's negotiating position in relation to present and future proposals concerning climate change.

While the Deputy President considered there is a public interested (to be distinguished from what is in the public interest) in the subject of climate change, he did not consider that this outweighed the need for the government to be able to correspond with the Commonwealth in a confidential manner where policy is being developed, especially in a Federal system where the States compete against one another. The Deputy President considered there is a greater public interest in the Victorian government being able to negotiate effectively with the Commonwealth government. Further, Government leaders need to be able to communicate in writing and not be restricted to face to face or telephone communications. In such matters, written communications need to be kept confidential. The public interest in ensuring politicians are able to negotiate and develop policy by a frank exchange of views and information on a confidential basis outweighed the fact that there existed an interested public. [65]

The Deputy President was satisfied disclosing the relevant documents could reasonably be expected to prejudice relations between the State of Victoria and the Commonwealth and between the State of Victoria and other states. [66-73]

Last updated: March 1, 2012