Skip to Content
From Monday 12 September 2020, OVIC's website will no longer be supported in Internet Explorer (IE).
We recommend installing Microsoft Edge, Google Chrome, Safari, Firefox, or Opera to visit the site.

Section 28 - Cabinet documents

Guidelines

Overview of section 28

1.1

Section 28 is intended to ensure the Cabinet process remains confidential.6 It protects the principle of collective ministerial decision-making and responsibility. The exemption is broad, extending to documents beyond those that are produced to and considered by Cabinet and its committees.7

1.2

Section 28 must be read consistently with the object of the Act in section 3, which is to extend as far as possible the right of the community to access government held information. This right is only limited by exemptions necessary for the protection of essential public interests and private and business affairs.8 If it is unclear whether section 28 applies to a document, the exemption should be interpreted narrowly, in a way that favours access to information.9

1.3

Agencies and Ministers must not use section 28 to refuse access to politically sensitive documents, that would not otherwise be protected without the Cabinet exemption.10 For example, a document should not be placed before Cabinet for consideration, for the purpose of ensuring the document is exempt under FOI.

Discretion to disclose exempt documents

1.4

The decision to exempt a document under section 28 is discretionary.12 This means an agency or Minister can choose to provide access to information that would otherwise be exempt, where it is proper to do so and where the agency or Minister is not legally prevented from providing access.

For more information, see section 16 – Access to documents apart from Act.

Steps to applying the exemption

1.5

An agency or Minister seeking to apply the Cabinet documents exemption should:

  • Consider which stream of section 28(1)(a)-(d) applies to the document or information.
  • Ensure each element of the relevant stream is satisfied.
  • Confirm the documents are not expressly excluded by the section.
  • If the exemption is made out, consider whether to exercise the discretion in section 16(2) to provide access to the information or document despite an exemption applying.

Documents captured by section 28

1.6

Section 28(1) exempts five types of Cabinet documents from disclosure:

  • the official record of any deliberation or decision of the Cabinet;18
  • a document that has been prepared by a Minister, or prepared by an agency on behalf of a Minster, for the purpose of submission for consideration by the Cabinet;19
  • a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;20
  • a document that is a copy or draft of, or contains extracts from, a document referred to in the above three dot points;21 or
  • a document which, if disclosed, would involve the disclosure of any deliberation or decision of the Cabinet.22

One of the five subsections must apply

1.7

A document must fit squarely within one of the five options in section 28(1) to be an exempt document.25 It is not sufficient for the document to merely have some connection with the Cabinet or to be perceived as having a Cabinet ‘aroma’.26

Documents not captured by section 28

1.8

Section 28(1) does not apply to:

  • a document that is more than 10 years old; 30
  • a document that contains purely statistical, technical, or scientific material, unless it would disclose any deliberation or decision of Cabinet;31 or
  • a document by which a decision of the Cabinet was officially published.32

Documents more than 10 years old

1.9

Section 28(1) does not apply to a document ‘10 years from the last day of the year in which the document came into existence’.34

Purely statistical, technical, or scientific information

1.10

Section 28(1) does not apply to a document that contains purely statistical, technical, or scientific material, unless it would disclose any deliberation or decision of Cabinet.40 Therefore, the information must:

  • be purely statistical, technical or scientific; and
  • not disclose deliberations or a decision of the Cabinet.41
1.11

The words ‘statistical’, ‘technical’ and ‘scientific’ should be given their ordinary meaning.42

1.12

In Mildenhall v Department of Premier and Cabinet (1995) 8 VAR 284 (Mildenhall No 1), Deputy President Macnamara (as he then was), referred to the dictionary definitions of these terms:43

  • the word ‘scientific’ includes the social sciences;
  • the word ‘statistical’ refers to the area of study in which the object is the collection and arrangement of numerical facts or data; and
  • the word ‘technical’ adds little to the collective expression used in the section, given its meaning includes things which belong to, relate to, are appropriate to, peculiar to or characteristic of a particular art, science, profession or occupation including the technical arts and applied sciences.
1.13

‘Purely statistical, technical, or scientific information’ is different from the broader concept of ‘purely factual information’ in section 30.44

‘Purely’

1.14

There is conflicting case law about the effect of the word ‘purely’ in section 28(3). This part of the Guidelines explains the conflict and provides guidance on how OVIC interprets this section.

1.15

In Mildenhall No 1, Deputy President Macnamara (as he then was), observed that the word ‘purely’ before the adjectives ‘statistical, technical or scientific’ means that ‘a document which has any features other than ‘statistical, technical or scientific’ [such as policy, opinion, advice or recommendation] will not be removed from exemption by the subsection’.50

1.16

Stretton v Major Transport Infrastructure Authority [2022] VCAT 1421 (Stretton) applied this passage from Mildenhall No 1 to find that an entire document must contain purely statistical, technical, or scientific information, and if any part of the document contains features such as policy, opinion, advice or recommendation, section 28(3) will not apply.51

1.17

However, in Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996) (Mildenhall No 2), Deputy President Macnamara clarified the statement he had made in Mildenhall No 1:

I was not meaning to suggest that the application of section 28(3) could not lead to the release of the purely scientific section of a particular document subject to the deletion of other portions consisting of opinion or advice. The section specifically uses the phrase “to the extent that…”. There is nothing in its terms to suggest that Section 25 of the statute (dealing with release subject to deletions) is not applicable.52

For more information on removing exempt and irrelevant information, see section 25 – Deletion of exempt matter or irrelevant material.

1.18

In conducting reviews, OVIC follows the interpretation in Mildenhall No 2. OVIC interprets the word ‘purely’ to mean that the information (not the whole document) must be purely ‘statistical, technical, or scientific’ in nature for section 28(3) to apply. If the information contains any other features, such as policy, opinion, advice or recommendation, section 28(3) will not apply.53

1.19

Where practicable under section 25(1), an agency or Minister can apply section 28(3) to part of a document, to permit the release of the purely statistical, technical or scientific information in the document, and refuse release of the remaining exempt information.54

Example of section 28(3) applying

Example of section 28(3) not applying

What is Cabinet, a Cabinet committee, or a Cabinet sub-committee?

1.20

‘Cabinet’ includes a committee or sub-committee of Cabinet.56 This means the section 28 exemption applies to Cabinet documents, Cabinet committee documents and Cabinet sub-committee documents.

Cabinet

1.21

Cabinet is a forum of Ministers chaired by the Premier which decides major policy for the Victorian Government. It comprises all Ministers and considers questions of policy, administration, and legislation.58

Cabinet committees and sub-committees

1.22

Cabinet is supported by a range of committees or sub-committees that focus on specific subject matter or issues of government focus including policy and legislative priorities. Cabinet committees are established by a decision of the Premier or the Cabinet.64

1.23

The following types of bodies fall within the definition of ‘Cabinet’:

  • Standing committees: ongoing committees that report directly to the Cabinet and support it in its decision-making role and provide oversight of sub-committees and taskforces;
  • Sub-committees: ongoing committees that support a specific whole of government policy area, allow for broad Ministerial representation and support standing committees; and
  • Taskforces: time-limited committees that are used to develop, implement and oversee the delivery of a specific policy, or related set of policies. Cabinet taskforces should not be confused with taskforces that are led by a Minister.65
1.24

The establishment of a committee, sub-committee or taskforce will include specific terms of reference. Evidence of the formal establishment of a committee, sub-committee or taskforce may include an official record of the Premier or the Cabinet’s decision and the terms of reference.66

1.25

The term ‘Committee of Cabinet’ was considered in Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719. In that case, the Administrative Appeals Tribunal (AAT):

  • interpreted ‘Committee of Cabinet’ in section 4 of the Commonwealth Freedom of Information Act 1982 to mean ‘a group of persons derived from the Cabinet performing a function for, or on behalf of the Cabinet, or a group having such a connection or association with the Cabinet that the group can be said to belong to the Cabinet’;67 and
  • determined that National Cabinet is not a Committee of Cabinet.68
1.26

The decision in Patrick is highly persuasive and should be followed in Victoria, given it relates to equivalent legislation at the Commonwealth level, and is the only judicial guidance on the meaning of the term ‘Committee of Cabinet’ and the status of the National Cabinet.

1.27

Applying the Patrick decision, the section 28 exemption will not apply to National Cabinet documents, unless the documents otherwise fall within the elements of section 28(1)(a)-(d).

Official record of any deliberation or decision of the Cabinet – section 28(1)(a)

1.28

Section 28(1)(a) exempts from release a document that is an official record of any deliberation or decision of the Cabinet. This is usually evident on the face of a document.

1.29

It is enough for a document to only record either deliberations or decisions; it does not need to do both.

What does OVIC require on review?

1.30

To establish the exemption in section 28(1)(a), an agency or Minister should provide a copy of the official record that evidences a deliberation or decision of the Cabinet.

1.31

During a review, there are special requirements for providing OVIC with the document that an agency or Minister claims is exempt under section 28.

For more information see section 63D – Special requirements for production of documents claimed to be exempt under section 28, 29A, 31 or 31A.

Documents prepared for the purpose of submitting to Cabinet for consideration – section 28(1)(b)

1.32

Section 28(1)(b) exempts from release a document that was prepared by a Minister, or on behalf of a Minister, or by an agency, for the purpose of submitting it to Cabinet for Cabinet’s consideration.

1.33

A document that falls under this exemption is likely to relate to an issue over which the Minister has responsibility as part of their Ministerial portfolio.

The purpose of a document’s creation

1.34

The document must have been created for the sole, substantial or dominant purpose of submission to the Cabinet for its consideration.74

1.35

If there is more than one purpose of a document’s creation, it can be useful to ask whether the document would have been created but for the purpose of submission for consideration by the Cabinet.75 If the document would have been created in any event, this may indicate the purpose of the document’s creation was not for submission for consideration by the Cabinet.76

1.36

The document does not need to have been, in fact, considered by, or submitted to, the Cabinet.77 The purpose of the document’s creation is the key consideration. However, where there is no evidence of the purpose of the document’s creation, the actual use of the document can assist to determine the purpose of its creation.78

Consideration by the Cabinet

1.37

The documents must be prepared for consideration by the Cabinet, not merely for the purpose of placing them before the Cabinet.88

1.38

It is helpful to consider the following principles outlined in case law when determining this factor:

  • ‘Consideration’ means ‘a step in a deliberative process’.89 For example, a matter which is likely to be discussed at a meeting of the Cabinet, or a matter on which an actual decision of the Cabinet must be made.90
  • Documents ‘for information’ or voluminous ‘raw information’ and ‘primary documents’ are not likely to be directly considered in the Cabinet regardless of whether they are attached to a Cabinet submission.91
  • A preliminary or preparatory document used to prepare a Cabinet submission, such as a brief from one department to another to assist in preparing a submission, is not a document prepared for the purpose of submission to the Cabinet for the Cabinet to consider.92
  • If a summary or executive summary of a report is submitted for consideration by the Cabinet, both the summary and full report can be exempt.93
  • A report prepared by an external consultant can be ‘prepared by an agency’ and can be captured even if the consultant did not know the document would go to the Cabinet when created.94 It is the agency’s purpose in commissioning the external consultant to prepare the document that is relevant.95
  • Where the Cabinet specifically asks for a document to be prepared, the document will be exempt from release.96

What does OVIC require on review?

1.39

To establish the exemption in section 28(1)(b), an agency or Minister should provide information that demonstrates each element of the exemption. This includes:

  • Evidence the document was submitted to the Cabinet (for example, a copy of the Cabinet submission and/or the agenda showing its submission to the Cabinet) where applicable.
  • A statement from a person within the relevant business area of the agency and with responsibility for or direct knowledge of the matter. The statement should attest to:
    • the person’s responsibilities within the agency;
    • why they are the appropriate person to make the statement; and
    • the personal knowledge of that person regarding the purpose for the creation of the document at the time it was prepared or commissioned.

Information provided by a person with no responsibility for or direct knowledge of the matter, such as the agency’s FOI officer, will generally not be sufficient to establish the purpose for which the document was created.

  • Any internal correspondence to demonstrate the purpose for which the document was created.
  • Highlighting any information in the document that demonstrates the purpose for which it was created.
  • Any additional details about who created the document and the circumstances in which it was created. If considered by, or submitted to, the Cabinet: details of when and by whom it was submitted or requested by the Cabinet.
  • If the document was not considered by, or submitted to, the Cabinet:
    • details of why it did not proceed; or
    • copies of internal advice (from the program area that created the document) describing why it did not proceed.
1.40

During a review, there are special requirements for providing OVIC with the document that an agency or Minister claims is exempt under section 28.

For more information see section 63D – Special requirements for production of documents claimed to be exempt under section 28, 29A, 31 or 31A.

Documents prepared for the purpose of briefing a Minister about issues to be considered by the Cabinet – section 28(1)(ba)

1.41

Section 28(1)(ba) exempts from release a document that was prepared for a Minister to brief them about an issue to be considered by the Cabinet.

1.42

A briefing document will usually relate to an issue within the Minister’s portfolio but may relate to another Minister’s portfolio – where a Minister needs advice about an issue to be deliberated on by the Cabinet.

1.43

While the briefing document does not need to be submitted to Cabinet, the subject of the Ministerial brief must be something to be considered by the Cabinet.

1.44

The exemption has two limbs that must be satisfied:

  • first, whether the document was prepared for the purpose of briefing a Minister; and
  • second, whether the briefing of the Minister was in relation to an issue that was, assessed objectively at the time the briefing occurred, an issue that was to be considered by the Cabinet.104

Document prepared for the purpose of briefing a Minister

1.45

The document must have been created for the sole, substantial or dominant purpose of briefing a Minister.111

1.46

If there is more than one purpose of the document’s creation, it can be useful to ask whether the document would have been created ‘but for’ the purpose of briefing a Minister (i.e. if a Minister had not required it to be created).112 If the document would have been created in any event, this may indicate the purpose of the document’s creation was not to brief the Minister.113

1.47

The document does not need to have been, in fact, provided to the Minister, so long as it was prepared to brief the Minister.114 Where there is no evidence of the purpose of the document’s creation, the actual use of the document can assist to determine the purpose of its creation, but is not decisive.115

1.48

The exemption can apply to documents prepared for the purpose of briefing an incoming Minister, about issues to be considered by the new Cabinet.116

Briefing

1.49

The exemption is limited to documents that have the character of briefing material.121 A briefing is a short accurate summary of the details of a plan, operation, or policy. The purpose of a briefing is to ‘inform’, and it will generally contain information or advice prepared for the purpose of being read by, or explained to, a Minister.122

1.50

Covering letters and facsimile cover sheets are not part of a brief. However, attached documents may form part of the brief.123

1.51

A document prepared simply for the purpose of placing it before a Minister is not a ‘briefing’.124

Relating to an issue to be considered by the Cabinet

1.52

An agency or Minister should objectively assess whether a briefing relates to an issue to be considered by the Cabinet at the time the briefing occurred. The subjective purpose of the document’s author is not relevant.130

1.53

It must be more than just ‘likely’ that the Cabinet will consider the issues outlined in the briefing. There must be an intention or expectation that the issue will be considered by the Cabinet (even if not ultimately considered).131 Evidence that the issue was included in the Cabinet agenda will meet this test.

1.54

The purpose of briefing a Minister in relation to an issue to be considered by the Cabinet must be ‘immediately contemplated’ when the document is created. The exemption cannot apply:

  • merely because Cabinet ultimately considers the issue;132 or
  • it is expected Cabinet is likely to consider the relevant issues in the future or from time to time.133
1.55

A document which is intended to brief a Minister about the process for having an issue brought before the Cabinet, ‘relates to’ that issue and can therefore be exempt, even though it does not canvass the substance of that issue.134

What does OVIC require on review in support of section 28(1)(ba)

1.56

To establish the exemption in section 28(1)(ba), an agency should provide information that demonstrates each element of the exemption.136 This may include the following types of information:

  • Generally, it will be clear the document is a briefing to a Minister as it will be in the form of a standard template. If the document is not in a standard template, an agency will need to provide supporting evidence or reasons to establish that the document is a briefing to a Minister.
  • Details of who created the document and when and who requested its creation, if this information is not already included in the document.
  • A statement from a person within the relevant business area of the agency and with responsibility for or direct knowledge of the matter. The statement should attest to:
    • the persons responsibilities within the agency;
    • why they are the appropriate person to make the statement; and
    • the personal knowledge of that person regarding the purpose for the creation of the document at the time it was prepared or commissioned.

Information provided by a person with no responsibility for or direct knowledge of the matter, such as the agency’s FOI officer, will generally not be sufficient to establish the purpose for which the document was created.

  • A copy of a Cabinet submission or agenda demonstrating the issue was considered by the Cabinet.
  • If the issue was not ultimately considered by the Cabinet, or the Minister, details of why this did not occur.
1.57

During a review, there are special requirements for providing OVIC with the document that an agency or Minister claims is exempt under section 28.

For more information see section 63D – Special requirements for production of documents claimed to be exempt under section 28, 29A, 31 or 31A.

Copy, draft, or extracts of a Cabinet document – section 28(1)(c)

1.58

Section 28(1)(c) exempts a document that is a copy or draft of, or contains extracts from, a document referred to in sections 28(1)(a), 28(1)(b) or 28(1)(ba), as discussed above.

Copy

1.59

A copy is a reproduction or duplicate of the document, for example a photocopy or printed copy.

Draft

1.60

A draft is a preliminary version of the document. It should be the actual document, often marked as draft.

1.61

A ‘draft’ does not extend to source documents that were created for other purposes before the submission or briefing, and where they contain information subsequently reproduced in the submission or brief.138

Extract

1.62

An extract usually contains a reproduction of part of the text or material such as a quote, paraphrase, or summary.143 Simply referring to a Cabinet document or incorporating figures that appeared in a table in a Cabinet submission, is not sufficient.144

1.63

The document containing extracts must have been created after the official record, Cabinet submission or Ministerial brief was prepared.145

1.64

To establish whether a document contains extracts, consider whether:

  • there is a footnote or other attribution in the text to show that the information came from an official record, Cabinet submission or Ministerial brief; or
  • direct evidence of a process of extracting content from an official record, Cabinet submission or Ministerial brief, to be included in the document.146

What does OVIC require on review in support of section 28(1)(c)?

1.65

To establish the exemption in section 28(1)(c), an agency should provide information that specifies and demonstrates:

  • there is a document exempt under section 28(1)(a), 28(1)(b) or 28(1)(ba); and
  • the document under review is a copy, draft or extract of the document exempt under subsection 28(1)(a), 28(1)(b) or 28(1)(ba).
1.66

If the document is a copy, provide a copy of the document that is exempt under section 28(1)(a), 28(1)(b) or 28(1)(ba) to demonstrate the document subject to review is a copy.

1.67

If the document is a draft, provide a copy of the document that is exempt under section 28(1)(a), 28(1)(b) or 28(1)(ba) to demonstrate the document subject to review is a draft version.

1.68

If the document is an extract, provide a copy of the document that is exempt under section 28(1)(a), 28(1)(b) or 28(1)(ba) to demonstrate the document subject to review contains an extract of the exempt information.

1.69

During a review, there are special requirements for providing OVIC with the document that an agency or Minister claims is exempt under section 28.

For more information see section 63D – Special requirements for production of documents claimed to be exempt under section 28, 29A, 31 or 31A.

Documents that disclose any deliberation or decision of the Cabinet – section 28(1)(d)

Deliberation

1.74

‘Deliberation’ means the actual debate that took place, not just the subject matter of the debate (what the debate was about). In other words, how the subject matter was treated (how arguments were weighed up and evaluated) by the Cabinet with a view to making a decision, not just the subject matter itself.153

1.75

A document may reveal deliberations of Cabinet if the document, on its face:154

  • discloses that the Cabinet required information of a particular type for the purpose of enabling the Cabinet to determine whether a course of action was practicable or feasible; or
  • advances an argument for a particular point of view.
1.76

In contrast, a document that just reveals that certain information, such as a statistic or description of an event, was placed before Cabinet does not reveal a deliberation or decision of the Cabinet.155

1.77

Where the exemption is not clear on the face of the document, an agency or Minister will need to produce evidence to demonstrate how the Cabinet dealt with the document and whether it actually deliberated or made a decision that could be revealed by disclosure of the document.156

Decision

1.78

Decision means any conclusions as to a course of action the Cabinet adopts, whether they are conclusions as to final strategy on a matter or conclusions about how a matter should proceed.166

What does OVIC require on review in support of section 28(1)(d)

1.79

To establish the exemption in section 28(1)(d), an agency should provide information that demonstrates each element of the exemption. This may include:

  • The terms of the document itself, which might be self-explanatory in demonstrating the exempt information relates to a deliberation or decision of the Cabinet. For example, ‘Cabinet discussed X’, ‘Cabinet approved Y’ or ‘Cabinet considered the implications of Z’.
  • Supporting evidence, such as a document exempt from release under sections 28(1)(a), 28(1)(b) or 28(1)(ba), to demonstrate the document subject to review contains a decision or deliberation of the Cabinet. For example, a copy of the Cabinet submission or agenda.
  • Confirmation that the deliberation or decision has not been officially published.
1.80

During a review, there are special requirements for providing OVIC with the document that an agency or Minister claims is exempt under section 28.

For more information see section 63D – Special requirements for production of documents claimed to be exempt under section 28, 29A, 31 or 31A.

Neither confirming nor denying the existence of a document

1.81

In some cases, even acknowledging that a document does, or does not exist, can cause harm or be prejudicial. In those cases, an agency or Minister may make a decision and express it in terms that neither confirms nor denies the existence of the requested document.169

1.82

An agency or Minister can neither confirm nor deny that a document exists where a document is exempt under section 28, or if it did exist, would be exempt under section 28.170

  1. Second Reading Speech, Freedom of Information (Amendment) Bill, 7 May 1993, Wade; see Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [16].
  2. Department of Premier and Cabinet v Newbury [2021] VCAT 331 [12].
  3. Ryan v Department of Infrastructure [2004] VCAT 2346 [32], Environment Victoria Inc v Department of Primary Industries (2013) VCAT 39 [29].
  4. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 [21] referring to Ryder v Booth (1989) VR 869, 877; Smith v Department of Sustainability and Environment [2006] VCAT 1228 [15].
  5. Ryan v Department of Infrastructure [2004] VCAT 2346 [32]; Smith v Department of Sustainability and Environment [2006] VCAT 1228 [15].
  6. Second Reading Speech, Freedom of Information (Amendment) Bill, 7 May 1993, Wade; see Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [16].
  7. Department of Premier and Cabinet v Newbury [2021] VCAT 331 [12].
  8. Ryan v Department of Infrastructure [2004] VCAT 2346 [32], Environment Victoria Inc v Department of Primary Industries (2013) VCAT 39 [29].
  9. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 [21] referring to Ryder v Booth (1989) VR 869, 877; Smith v Department of Sustainability and Environment [2006] VCAT 1228 [15].
  10. Ryan v Department of Infrastructure [2004] VCAT 2346 [32]; Smith v Department of Sustainability and Environment [2006] VCAT 1228 [15].
  11. Victorian Public Service Board v Wright [1986] HCA 16 [3].
  12. Victorian Public Service Board v Wright [1986] HCA 16 [3].
  13. Freedom of Information Act 1982 (Vic), section 28(1)(a).
  14. Freedom of Information Act 1982 (Vic), section 28(1)(b).
  15. Freedom of Information Act 1982 (Vic), section 28(1)(ba).
  16. Freedom of Information Act 1982 (Vic), section 28(1)(c).
  17. Freedom of Information Act 1982 (Vic), section 28(1)(d).
  18. Freedom of Information Act 1982 (Vic), section 28(1)(a).
  19. Freedom of Information Act 1982 (Vic), section 28(1)(b).
  20. Freedom of Information Act 1982 (Vic), section 28(1)(ba).
  21. Freedom of Information Act 1982 (Vic), section 28(1)(c).
  22. Freedom of Information Act 1982 (Vic), section 28(1)(d).
  23. Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 [71]; Ryan v Department of Infrastructure [2004] VCAT 2346 [33]; Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [23].
  24. Ryan v Department of Infrastructure [2004] VCAT 2346 [33]; Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [23].
  25. Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 [71]; Ryan v Department of Infrastructure [2004] VCAT 2346 [33]; Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [23].
  26. Ryan v Department of Infrastructure [2004] VCAT 2346 [33]; Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [23].
  27. Freedom of Information Act 1982 (Vic), section 28(2).
  28. Freedom of Information Act 1982 (Vic), section 28(3).
  29. Freedom of Information Act 1982 (Vic), section 28(1)(d).
  30. Freedom of Information Act 1982 (Vic), section 28(2).
  31. Freedom of Information Act 1982 (Vic), section 28(3).
  32. Freedom of Information Act 1982 (Vic), section 28(1)(d).
  33. Freedom of Information Act 1982 (Vic), section 28(2).
  34. Freedom of Information Act 1982 (Vic), section 28(2).
  35. Freedom of Information Act 1982 (Vic), section 28(3).
  36. Pullen v Alpine Resorts Commission (unreported, AAT, Macnamara DP, 23 August 1996) 20.
  37. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294.
  38. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294, applied in Stretton v Major Transport Infrastructure Authority [2022] VCAT 1421 [45].
  39. Pullen v Alpine Resorts Commission (unreported, AAT, Macnamara DP, 23 August 1996) 21; Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996), 9.
  40. Freedom of Information Act 1982 (Vic), section 28(3).
  41. Pullen v Alpine Resorts Commission (unreported, AAT, Macnamara DP, 23 August 1996) 20.
  42. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294.
  43. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294, applied in Stretton v Major Transport Infrastructure Authority [2022] VCAT 1421 [45].
  44. Pullen v Alpine Resorts Commission (unreported, AAT, Macnamara DP, 23 August 1996) 21; Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996), 9.
  45. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 295.
  46. Stretton v Major Transport Infrastructure Authority [2022] VCAT 1421 [46], [50].
  47. Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996), page 9 (Mildenhall No 2). The decision in Stretton v Major Transport Infrastructure Authority [2022] VCAT 1421 [50] appears to have been made without reference to this passage from Mildenhall No 2.
  48. See statement made by Macnamara DP in Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294, as clarified by Macnamara DP in Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996), 9.
  49. Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996), 9.
  50. Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 295.
  51. Stretton v Major Transport Infrastructure Authority [2022] VCAT 1421 [46], [50].
  52. Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996), page 9 (Mildenhall No 2). The decision in Stretton v Major Transport Infrastructure Authority [2022] VCAT 1421 [50] appears to have been made without reference to this passage from Mildenhall No 2.
  53. See statement made by Macnamara DP in Mildenhall v Department of Premier and Cabinet (No 1) (1995) 8 VAR 284, 294, as clarified by Macnamara DP in Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996), 9.
  54. Mildenhall v Department of Treasury and Finance (unreported, AAT of Vic, Macnamara DP, 18 March 1996), 9.
  55. Freedom of Information Act 1982 (Vic), section 28(7).
  56. Freedom of Information Act 1982 (Vic), section 28(7).
  57. See the Victorian Government ‘Cabinet Handbook’ (August 2021).
  58. See the Victorian Government ‘Cabinet Handbook’ (August 2021).
  59. See the Victorian Government ‘Cabinet Handbook’ (August 2021).
  60. See the Victorian Government ‘Cabinet Handbook’ (August 2021).
  61. Asher v Department of Premier and Cabinet [2008] VCAT 450 [18].
  62. Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719 [64].
  63. Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719 [210].
  64. See the Victorian Government ‘Cabinet Handbook’ (August 2021).
  65. See the Victorian Government ‘Cabinet Handbook’ (August 2021).
  66. Asher v Department of Premier and Cabinet [2008] VCAT 450 [18].
  67. Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719 [64].
  68. Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719 [210].
  69. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]; Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 [72].
  70. Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [13].
  71. Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [80], [82].
  72. Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [20]; Wilson v Department of Premier & Cabinet [2001] VCAT 663 [16]; Asher v Department of Infrastructure [2006] VCAT 1375 [9], [20]; Ryan v Department of Infrastructure [2004] VCAT 2346 [34].
  73. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]; Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [15]; Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [19].
  74. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]; Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 [72].
  75. Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [13].
  76. Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [80], [82].
  77. Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [20]; Wilson v Department of Premier & Cabinet [2001] VCAT 663 [16]; Asher v Department of Infrastructure [2006] VCAT 1375 [9], [20]; Ryan v Department of Infrastructure [2004] VCAT 2346 [34].
  78. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]; Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [15]; Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [19].
  79. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]-[36]; Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [22].
  80. Olexander v Department of Premier Cabinet [2002] VCAT 497 [46].
  81. Olexander v Department of Premier Cabinet [2002] VCAT 497 [46].
  82. Ryan v Department of Infrastructure [2004] VCAT 2346 [36]–[40]; Olexander v Department of Premier Cabinet [2002] VCAT 497 [46].
  83. Department of Infrastructure v Asher [2007] VSCA 272 [37], [40], [55].
  84. Olexander v Department of Premier Cabinet [2002] VCAT 497 [28]-[29]; State Owned Enterprise for Irrigation Modernisation in Northern Victoria v Manners [2010] VSC 516 [28].
  85. Smith v Department of Sustainability and Environment [2006] VCAT 1228 [17]; Asher v Department of Premier and Cabinet [2008] VCAT 450 [39]-[43], [74].
  86. Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657 [28].
  87. Smith v Department of Sustainability and Environment [2006] VCAT 1228 [17].
  88. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]-[36]; Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [22].
  89. Olexander v Department of Premier Cabinet [2002] VCAT 497 [46].
  90. Olexander v Department of Premier Cabinet [2002] VCAT 497 [46].
  91. Ryan v Department of Infrastructure [2004] VCAT 2346 [36]–[40]; Olexander v Department of Premier Cabinet [2002] VCAT 497 [46].
  92. Department of Infrastructure v Asher [2007] VSCA 272 [37], [40], [55].
  93. Olexander v Department of Premier Cabinet [2002] VCAT 497 [28]-[29]; State Owned Enterprise for Irrigation Modernisation in Northern Victoria v Manners [2010] VSC 516 [28].
  94. Smith v Department of Sustainability and Environment [2006] VCAT 1228 [17]; Asher v Department of Premier and Cabinet [2008] VCAT 450 [39]-[43], [74].
  95. Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657 [28].
  96. Smith v Department of Sustainability and Environment [2006] VCAT 1228 [17].
  97. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]-[36].
  98. Ryan v Department of Infrastructure [2004] VCAT 2346 [39].
  99. Ryan v Department of Infrastructure [2004] VCAT 2346 [38].
  100. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]-[36].
  101. Ryan v Department of Infrastructure [2004] VCAT 2346 [39].
  102. Ryan v Department of Infrastructure [2004] VCAT 2346 [38].
  103. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 [22]; Department of Premier and Cabinet v Newbury [2021] VCAT 331 [14].
  104. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822 [22]; Department of Premier and Cabinet v Newbury [2021] VCAT 331 [14].
  105. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]; Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 [72].
  106. Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 [73]; Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [13].
  107. Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [80], [82].
  108. Department of Premier and Cabinet v Newbury [2021] VCAT 331 [32]; Ryan v Department of Infrastructure [2004] VCAT 2346 [34].
  109. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]; Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [15].
  110. Fyfe v Department of Sustainability and Environment [2012] VCAT 222.
  111. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]; Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 [72].
  112. Herald & Weekly Times v Victorian Curriculum & Assessment Authority [2004] VCAT 924 [73]; Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [13].
  113. Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [80], [82].
  114. Department of Premier and Cabinet v Newbury [2021] VCAT 331 [32]; Ryan v Department of Infrastructure [2004] VCAT 2346 [34].
  115. Ryan v Department of Infrastructure [2004] VCAT 2346 [34]; Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [15].
  116. Fyfe v Department of Sustainability and Environment [2012] VCAT 222.
  117. Ryan v Department of Infrastructure [2004] VCAT 2346 [41].
  118. Ryan v Department of Infrastructure [2004] VCAT 2346 [41]; Department of Premier and Cabinet v Newbury [2021] VCAT 331 [15].
  119. Hulls v Department of Treasury and Finance (No 2) (1994) 14 VAR 295.
  120. Ryan v Department of Infrastructure [2004] VCAT 2346 [41]; Department of Premier and Cabinet v Newbury [2021] VCAT 331, [15].
  121. Ryan v Department of Infrastructure [2004] VCAT 2346 [41].
  122. Ryan v Department of Infrastructure [2004] VCAT 2346 [41]; Department of Premier and Cabinet v Newbury [2021] VCAT 331 [15].
  123. Hulls v Department of Treasury and Finance (No 2) (1994) 14 VAR 295.
  124. Ryan v Department of Infrastructure [2004] VCAT 2346 [41]; Department of Premier and Cabinet v Newbury [2021] VCAT 331, [15].
  125. Department of Premier and Cabinet v Newbury [2021] VCAT 331, [31].
  126. Mildenhall v Department of Treasury and Finance (unreported, AAT, Macnamara DP, 18 March 1996), 14.
  127. Thwaites v Department of Health and Community Services (unreported, AAT of Vic, Macnamara DP, 4 April 1996), 17.
  128. Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [38]-[41].
  129. Department of Premier and Cabinet v Newbury [2021] VCAT 331, [17] and [29], following Marple v Department of Agriculture (1995) 9 VAR 29.
  130. Department of Premier and Cabinet v Newbury [2021] VCAT 331, [31].
  131. Mildenhall v Department of Treasury and Finance (unreported, AAT, Macnamara DP, 18 March 1996), 14.
  132. Thwaites v Department of Health and Community Services (unreported, AAT of Vic, Macnamara DP, 4 April 1996), 17.
  133. Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [38]-[41].
  134. Department of Premier and Cabinet v Newbury [2021] VCAT 331, [17] and [29], following Marple v Department of Agriculture (1995) 9 VAR 29.
  135. See ‘EV5’ and Department of Health (Freedom of Information) [2022] VICmr 223 (19 September 2022) for an example of the exemption not being established due to lack of evidence from the agency.
  136. See ‘EV5’ and Department of Health (Freedom of Information) [2022] VICmr 223 (19 September 2022) for an example of the exemption not being established due to lack of evidence from the agency.
  137. Department of Infrastructure v Asher [2007] VSCA 272 [44].
  138. Department of Infrastructure v Asher [2007] VSCA 272 [44].
  139. Mildenhall v Department of Education (unreported, VCAT, Glover M, 16 April 1999); Honeywood v Department of Human Services [2006] VCAT 2048 [19].
  140. Mildenhall v Department of Education (unreported, VCAT, Glover M, 16 April 1999); Batchelor v Department of Premier and Cabinet (unreported, AAT of Vic, Fagan P and Coghlan M, 29 January 1998) 23.
  141. Honeywood v Department of Human Services [2006] VCAT 2048 [19]; Smith v Department of Sustainability and Environment (General) [2006] VCAT 1228 [28].
  142. Honeywood v Department of Human Services [2006] VCAT 2048 [19].
  143. Mildenhall v Department of Education (unreported, VCAT, Glover M, 16 April 1999); Honeywood v Department of Human Services [2006] VCAT 2048 [19].
  144. Mildenhall v Department of Education (unreported, VCAT, Glover M, 16 April 1999); Batchelor v Department of Premier and Cabinet (unreported, AAT of Vic, Fagan P and Coghlan M, 29 January 1998) 23.
  145. Honeywood v Department of Human Services [2006] VCAT 2048 [19]; Smith v Department of Sustainability and Environment (General) [2006] VCAT 1228 [28].
  146. Honeywood v Department of Human Services [2006] VCAT 2048 [19].
  147. Honeywood v Department of Innovation, Industry and Regional Development [2004] VCAT 1657 [26].
  148. Department of Infrastructure v Asher [2007] VSCA 272, [56] – [57].
  149. Department of Infrastructure v Asher [2007] VSCA 272, [6] and [58].
  150. Department of Infrastructure v Asher [2007] VSCA 272, [8].
  151. Department of Infrastructure v Asher [2007] VSCA 272, [8].
  152. See Asher v Department of Sustainability and Environment [2010] VCAT 601.
  153. Department of Infrastructure v Asher [2007] VSCA 272, [6] and [58].
  154. Department of Infrastructure v Asher [2007] VSCA 272, [8].
  155. Department of Infrastructure v Asher [2007] VSCA 272, [8].
  156. See Asher v Department of Sustainability and Environment [2010] VCAT 601.
  157. See Asher v Department of Premier and Cabinet [2008] VCAT 450, [106].
  158. See Hartland v Department of Treasury and Finance [2016] VCAT 1826, [173].
  159. Department of Infrastructure v Asher [2007] VSCA 272, [8].
  160. Asher v Melbourne Water [2009] VCAT 1079, [34].
  161. See Asher v Department of Premier and Cabinet [2008] VCAT 450, [106].
  162. See Hartland v Department of Treasury and Finance [2016] VCAT 1826, [173].
  163. Department of Infrastructure v Asher [2007] VSCA 272, [8].
  164. Asher v Melbourne Water [2009] VCAT 1079, [34].
  165. Dalla-Riva v Department of Treasury and Finance [2005] VCAT 2083, [30] citing Toomer and Department of Agriculture, Fishers and Forestry and Ors [2003] AATA 1301 [88].
  166. Dalla-Riva v Department of Treasury and Finance [2005] VCAT 2083, [30] citing Toomer and Department of Agriculture, Fishers and Forestry and Ors [2003] AATA 1301 [88].
  167. Freedom of Information Act 1982 (Vic), section 27(2)(b).
  168. Freedom of Information Act 1982 (Vic), section 27(2)(b).
  169. Freedom of Information Act 1982 (Vic), section 27(2)(b).
  170. Freedom of Information Act 1982 (Vic), section 27(2)(b).

Download

FOI-Guidelines-Part-IV-Exempt-documents.docx

FOI-Guidelines-Part-IV-Exempt-documents.docx
Size 2.35 MB

Download
FOI-Guidelines-Part-IV-Exempt-documents.pdf

FOI-Guidelines-Part-IV-Exempt-documents.pdf
Size 4.69 MB

Download

Contents

Back to Index

Details

Last updated 13 February

Back to top
Back to Top