Little; Cantoni and Department of Natural Resources

Application number:
1995 S0011
Decision date:
Friday, Mar 22, 1996
(1996) 3 QAR 170

Little; Cantoni and Department of Natural Resources
(1995 S0011, 22 March 1996) 

This decision involved, inter alia, the interpretation and application of s.36 (Cabinet matter exemption) and s.37 (Executive Council matter exemption) in the form they took after amendment in March 1995.  The case is illustrative of a willingness of some agencies to attempt to rely on the broad terms of those provisions, even in circumstances where disclosure would not cause harm to the Cabinet/Executive Council process. 

The applicants sought access to valuations prepared within the Department of Natural Resources (formerly the Department of Lands) in respect of the applicants' land in north Queensland.  The State wished to acquire that land in order to build a school.  The Department initially determined that the valuations were exempt under s.41(1) (deliberative process exemption), and s.49 (State financial/property interests exemption).  In the course of the external review, the Department agreed to release factual matter contained in the valuation, but not matter which would show the methodology used in arriving at the valuation, the valuation figure, or certain observations as to how the Department might acquire the subject land.  After s.36(1)(c) and s.37(1)(c) were amended in March 1995, the Department claimed that the matter in issue was also exempt under those provisions (which were given retrospective effect by the amending legislation). 

The Department's case in relation to s.36 and s.37 was that—

·       the valuation was prepared for briefing a Minister or chief executive in relation to a matter that was proposed to be submitted to Cabinet by a Minister, and hence exempt under s.36(1)(c); and

·       the valuation was prepared for briefing, or the use of, the Governor, a Minister, or a chief executive in relation to a matter proposed to be submitted to Executive Council by a Minister, and hence exempt under s.37(1)(c). 

The Department's case was put on the basis that the subject land would be acquired under the Acquisition of Land Act 1967 Qld, and that it was therefore inevitable that such a valuation would be provided to the Minister for Lands, and to Executive Council, in order that a proclamation could be made, acquiring the land. 

The Information Commissioner discussed the purposive requirement inherent in the words "prepared for briefing, or the use of, …".  The Information Commissioner considered that the most appropriate meaning to be ascribed to those words is that, in order to qualify for exemption, the qualifying purpose must be the dominant purpose for preparation of the matter in issue.  The Information Commissioner stated that the word dominant in this sense, means "ruling, prevailing, most influential".  In circumstances where there were multiple purposes for the preparation of the matter in issue, not all of which were qualifying purposes under s.36(1)(c) or s.37(1)(c), the application of those provisions would require a finding on an ultimate question of fact, to be determined by an objective examination of the relevant primary facts and circumstances, as to whether or not the dominant purpose for the preparation of the matter in issue was one of the qualifying purposes for exemption under s.36(1)(c) or s.37(1)(c).  Where a specific and direct purpose for the preparation of the matter in issue can be identified from the relevant primary facts and circumstances, that will ordinarily be the most reliable indicator of the dominant purpose for which the matter in issue was prepared. 

The Information Commissioner also expressed the view that the words "by a Minister" in s.36(1)(c)(ii) and s.37(1)(c)(ii) qualify the word "proposed", rather than the word "submitted", so that an agency seeking to establish exemption must show that a Minister proposed that the relevant matter go to Cabinet or Executive Council.

The Information Commissioner found that the Department had failed to establish the material facts that would attract the application of either s.36(1)(c) or s.37(1)(c).  The dominant purpose for the preparation of the valuation report in issue was that of negotiating with the applicants to acquire their land at an agreed fair price. 

The Information Commissioner also rejected the claim of the Department that the matter in issue was exempt under s.41(1).  The Information Commissioner determined that the matter remaining in issue could be properly characterised as "deliberative process" matter for the purposes of s.41(1)(a) but concluded that disclosure would not be contrary to the public interest.  The Department contended that disclosure of the matter in issue would be contrary to the public interest for two reasons. 

First, it claimed disclosure would prejudice the financial or property interests of the State, as the public interest was served by the State maximising its negotiating advantage against a property owner trying to "maximise his benefit".  The Department contended that disclosure would cause "procedural unfairness" to it, since the land owner would have the Department's valuation but the Department would not have the landowner's valuation.  The Information Commissioner rejected these arguments.  Acquisition of a citizen's property for public purposes is one of the most intrusive powers which a government is able to exercise against the citizen.  The Information Commissioner noted that it is a fundamental principle of Australia's system of law and government that, in the absence of exceptional circumstances, the State should not compulsorily acquire the property of a citizen on other than just terms.  The Information Commissioner stated my opinion that the balance of the public interest lies in ensuring that the process of acquisition is as transparent as possible for the affected citizen, who should be permitted access to information which would assist the assessment of what is fair compensation of the property acquired.  The Information Commissioner commented that although the Department was attempting to acquire the applicants' land through an "open market" transaction, an agency with power to resume land, such as the Department, will ordinarily be in a superior bargaining position by virtue of its ability to resort to compulsory acquisition if a sale cannot be achieved by negotiation. 

Secondly, the Department contended that disclosure would be contrary to the public interest because disclosure by a valuer (in this case the Valuer-General's Office) would amount to a breach of the statutory duty of confidence owed by a registered valuer to a client.  The Information Commissioner rejected this submission for two reasons.  First, as the Information Commissioner explained in Cairns Port Authority and Department of Lands (1994) 1 QAR 663 at pp.731-732 (paragraphs 175-180), the Information Commissioner does not consider that the relevant statutory provision (Valuers' Registration Regulation 1992, s.6) applies to valuers employed as officers of the Department when carrying out their duties of office.  Secondly, even if that provision did apply to the valuation in issue, the Information Commissioner determined that the valuation was held by the Department in its capacity as client of the valuer who prepared the valuation.  A client in possession of a valuation report prepared for the client's purposes ordinarily owes no duty of confidence to the valuer in respect of the valuation (see Hopkins and Department of Transport (1995) 3 QAR 59). 

Although it was not necessary for my decision, the Information Commissioner also found that most, if not all, of the matter in issue was not eligible for exemption under s.41(1), by virtue of s.41(2)(c), because it merely consisted of expert opinion or analysis by an expert valuer. 

Finally, the Information Commissioner rejected the Department's claim that the matter was exempt under s.49, because the Information Commissioner was not satisfied that there were real and substantial grounds for expecting that disclosure of the matter would have any adverse effect on the financial or property interests of the State, let alone a "substantial" adverse effect on those interests.