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Section 35 - Documents containing material obtained in confidence

Guidelines

Overview

1.1

Section 35 contains two exemptions that relate to information communicated in confidence by or on behalf of a person or a government to an agency or Minister. This includes where release would disclose information communicated in confidence:

  • to an agency or Minister and the information would be exempt matter if it were generated by an agency or a Minister;5 and
  • to an agency or Minister and the disclosure would be contrary to the public interest because the disclosure would be reasonably likely to impair the ability of an agency or Minister to obtain similar information in the future.6
1.2

Unless an exception applies, an agency or Minister must consult with the relevant third party or parties who communicated the information, before making a decision on the request.

1.3

Section 35 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.7 If it is unclear whether section 35 applies to a document, the exemption should be interpreted narrowly, in a way that favours access to information.8

Discretion to disclose exempt documents

1.4

The decision to exempt a document under section 35 is a discretionary power. This means an agency or Minister can choose to provide access to information that would otherwise be exempt under section 35, where it is proper to do so and where the agency or Minister is not legally prevented from providing access.

For more information on providing access to information outside of the Act, see section 16 – Access to documents apart from Act.

When section 35 does not apply – section 35(2)

1.5

The exemptions in section 35 do not apply to information acquired by an agency or Minister from a business, commercial or financial undertaking, where the information relates to trade secrets or other matters of a business, commercial or financial nature. This type of information is considered under the section 34.

Meaning of certain common terms and phrases

Information communicated to the agency or Minister

1.6

For both the section 35(1)(a) and (b) exemptions, the information must have been communicated ‘by or on behalf of a person or a government to an agency or a Minister’.

1.7

Section 35 can apply to information communicated confidentially by an officer in a department to a different department, agency or Minister. For example, information provided confidentially by public servants to the Victorian Ombudsman.13

1.8

Generally, section 35(1) only applies to information communicated from an external source. It usually does not apply to information generated by the agency or its own officers.

1.9

Documents created by an agency or its own officers should be considered under section 30(1) – the internal working documents exemption. For example, a brief prepared by departmental officers to their Minister should be considered under section 30, not section 35.14

1.10

In very limited circumstances, section 35 may apply to particularly sensitive and confidential information communicated to an agency by its own officers.15 For example, in the context of internal complaints and investigations, or where misconduct or corruption is reported. In these situations, the officer’s position is analogous to that of an outside source.16

Information communicated in confidence

1.11

Whether information was communicated in confidence is a question of fact,29 determined from the perspective of the communicator.30

1.12

An agency should consider direct or circumstantial evidence about the confidentiality the person expected when they communicated the information, taking into account:

  • confidentiality can be express or implied from the circumstances;31
  • it is not necessary to consider whether legal obligations of confidence are set up by the communication in question;32
  • a formal agreement between the parties is not necessary to support the claim of confidentiality, nor will a formal agreement automatically mean information is confidential;33
  • merely marking a document ‘confidential’ is not sufficient evidence of an intention that the information remains confidential.34 Conversely a document does not have to be marked ‘confidential’ to establish that it contains information communicated in confidence;35
  • a legislated process to provide confidential information may support applying the exemption;36
  • information disclosed to the public generally (for example, by the media) can remove confidentiality;37
  • information may still be regarded as being communicated in confidence if the person giving the information is told that the information they provide is not, or may not be, absolutely confidential;38
  • the reliability of information does not affect whether it was communicated in confidence;39 and
  • appropriate disclosure within the agency (for example, to parties involved in an investigation, or to those in management, or in a chain of command) does not undermine the confidentiality of the information.40

Section 35(1)(a) – information would be exempt if generated by an agency

1.13

A document may be considered exempt under section 35(1)(a) if two conditions are satisfied:

  • disclosure would divulge information or matter:
    • communicated in confidence;
    • by or on behalf of a person or a government to an agency or a Minister; and
  • the information would be exempt matter if it were generated by an agency or a Minister.
1.14

The first condition is discussed above under ‘meaning of certain common terms and phrases.’

Steps to applying the exemption

1.15

An agency or Minister seeking to apply section 35(1)(a) should:

  1. Specifically identify any information or matter that appears to have been communicated in confidence.
  2. Confirm that the information was communicated in confidence noting from whom, when and how the information was communicated and why the agency considers it was communicated in confidence.
  3. Confirm the information was not communicated from a business, commercial or financial undertaking, and is not a trade secret, or information about the business, commercial or financial matters of an undertaking. Under section 35(2), the section 35(1)(a) exemption does not apply to this type of information.
  4. Unless an exception in section 35(1B) applies, consult with the relevant third party or parties who communicated the information to determine:
    1. if the information was communicated in confidence, and if so, any supporting evidence; and
    2. whether the document should be disclosed to the applicant, including any reasons; and
    3. whether the third party consents to disclosure of the document, or disclosure subject to deletions.
  5. Consider whether an extension of time under section 21(2) is permitted due to the need for consultation under section 35(1A).
  6. Consider whether the information or matter would be exempt under another provision in Part IV of the Act if that information had been generated by an agency or a Minister:
    1. identify the relevant exemption in Part IV of the Act (typically section 30(1)); and
    2. ensure each element of that exemption is met.
  7. If a decision is made to release the information, notify any third party who did not consent to the disclosure, or did not reply after being consulted. Inform them of the decision and their right to appeal to VCAT, including the 60-day appeal period.
  8. Wait until the conclusion of any appeal period or VCAT proceedings before providing the documents to the applicant.
    1. If there are any documents falling within the request that do not contain the information the third party was consulted about, and a decision is made to release these documents, then these documents can be released to the applicant at the same time as the decision notice, without needing to wait for the appeal period to end.

Information would be exempt matter if generated by an agency or Minister

1.16

The second condition of section 35(1)(a) is that the information must be exempt under one of the other exemptions in Part IV, if the information had been generated by an agency, rather than communicated to the agency from an external person.

1.17

For example, if an officer from Agency A communicates information in confidence to Agency B, and it contains information exempt under another section of the Act, Agency B might exempt that document under section 35(1)(a).

Section 35(1)(b) – impair an agency’s ability to obtain information in future

1.18

A document may be exempt under section 35(1)(b) if two conditions are satisfied:

  • disclosure would divulge information or matter:
    • communicated in confidence;
    • by or on behalf of a person or a government to an agency or a Minister; and
  • disclosure would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.
1.19

The first condition is discussed above under ‘meaning of certain common terms and phrases’.

Steps to applying the exemption

1.20

An agency or Minister seeking to apply the section 35(1)(b) exemption should:

  1. Specifically identify any information or matter that appears to have been communicated in confidence.
  2. Confirm that the information was communicated in confidence noting from whom, when and how the information was communicated and why the agency considers it was communicated in confidence.
  3. Confirm the information was not communicated from a business, commercial or financial undertaking, and is not a trade secret, or information about the business, commercial or financial matters of an undertaking. Under section 35(2), the section 35(1)(b) exemption does not apply to this type of information.
  4. Consider the factors set out below in these Guidelines, to determine if disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.
  5. Unless an exception in section 35(1B) applies, consult with the relevant third party or parties who communicated the information to determine:
    1. if the information was communicated in confidence, and if so, any supporting evidence; and
    2. whether the document should be disclosed to the applicant, including any reasons; and
    3. whether the third party consents to disclosure of the document, or disclosure subject to deletions.
  6. Consider whether an extension of time under section 21(2) is permitted due to the need for consultation under section 35(1A).
  7. If a decision is made to release the information, notify any third party who did not consent to the disclosure, or did not reply after being consulted. Inform them of the decision and their right to appeal to VCAT, including the 60-day appeal period.
  8. Wait until the conclusion of any appeal period or VCAT proceedings before providing the documents to the applicant.
    1. If there are any documents falling within the request that do not contain the information the third party was consulted about, and a decision is made to release these documents, then these documents can be released to the applicant at the same time as the decision notice, without needing to wait for the appeal period to end.

The public interest

1.21

The public interest requirement in section 35 is directed specifically to the effect that disclosure would have on the ability of an agency or Minister to obtain similar information in future. This is a question of fact. An agency or Minister should have evidence to support a finding that disclosure of the information would have this effect.45

1.22

The section does not require an agency or Minister to consider the public interest generally.46

The meaning of ‘reasonably likely’

1.23

For information communicated in confidence to be exempt under section 35(1)(b), its disclosure must be reasonably likely to impair the agency’s ability to obtain similar information in the future. ‘Reasonably likely’ is not defined in the Act. However, case law suggests that the threshold is:

  • an actual likelihood that similar information would not be forthcoming;52
  • a possibility that is real rather than fanciful or remote;53
  • more probable than not;54
  • more likely than not.55
1.24

It is not sufficient to merely establish that persons would be less candid in future or would feel betrayed or feel resentment if the information were disclosed.56

Impair the ability to obtain similar information in future

1.25

The term ‘impair’ is not defined in the Act. However, case law suggests:

  • the degree of impairment must go beyond a trifling or minimal impairment;70
  • there must be an actual impairment to the ability of the agency to obtain like information in the future;71
  • it is not enough that individuals would be somewhat less candid than they otherwise might be72 or would feel resentment at having their confidence betrayed;73
  • the necessary level of impairment will be made out if a significant minority of persons in the relevant group would be firmly resistant to providing similar information in the future;74
  • it is the agency that must be impaired from receiving information, not simply a reluctance on the part of a supplier to provide information;75
  • the existence of a statutory duty to provide information does not necessarily exclude the possibility that disclosure would be reasonably likely to impair an agency’s ability to obtain similar information in the future, particularly where disclosure might impact the quality and quantity of any future information provided.76 In comparison, an agency will not be impaired from obtaining a specific type of information in future, if there is legislation which compels a person to provide this type of information to the agency.77

1.26

‘Obtain’ is to be interpreted broadly and can include receiving unsolicited information.78

1.27

‘Similar information’ is information of the same class or character as the information in the requested documents.79 The precise content of the information is not relevant.80

1.28

The similarity of the source of the information is a relevant consideration.81

1.29

With respect to persons who are the subject of an investigation, responding to complaints made against them, VCAT has found that release of the person’s response would not impair the ability of the agency to obtain similar information in future, and is not exempt under section 35(1)(b). VCAT noted that internal policies of the agency required cooperation in such investigations and observed:

the interest a respondent to an allegation has in exculpating themselves from complaints made against them is sufficient incentive to give an adequately forthright account of themselves. Aside from the positive public interest favouring transparency in a complaints process, the public interest will be further served because an officer responding to a complaint will take greater care in ensuring accuracy and a lack of exaggeration in the knowledge that persons outside the organisation may scrutinise that response.82

Third party consultation

1.30

Where an agency identifies information that appears to have been communicated in confidence, subject to certain exceptions, the agency must consult with the third party that communicated the information on the circumstances surrounding the communication before making a decision.

The requirement to consult and related considerations

1.31

In deciding whether the exemption in section 35(1)(a) or section 35(1)(b) applies, section 35(1A), requires an agency or Minister to:

  • notify the following persons that a request has been received:
    • the person or government that communicated the information or matter; or
    • the person or government on whose behalf the information or matter was communicated; and
  • seek their view as to whether the information was communicated in confidence; and
  • if the section 35(1)(b) exemption is being considered, seek their view as to whether disclosure of the information would be reasonably likely to impair the ability of an agency or Minister to obtain similar information in the future; and
  • seek their view as to whether they consent or object to disclosure of the information; and
  • advise the person or government that if they consent to disclosure, they are not entitled to apply to VCAT for a review of a decision to grant access to the document.
1.32

When consulting, an agency or Minister should inform the third party of the relevant subsection of section 35(1) that may be engaged, and what conditions must be established for that exemption to apply.

1.33

Informing the third party of the elements of the exemption will enable the third party to provide an informed response and ensure their reasons are relevant, if they object to the document being released.

1.34

The third party’s view is not determinative. It is only one factor to be considered when deciding whether the exemption applies. A person may strongly object to release, but if an agency or Minister is not satisfied that all conditions of the exemption are made out, the document must be released.

1.35

When consulting, the 30-day timeframe to decide a request may be extended by up to 15 days under section 21(2)(a).

1.36

Consultation may occur in any manner or form. For example, by telephone, email, post, or a meeting.

1.37

Professional Standard 7.3 requires a record of the consultation to be kept. This includes who was consulted, whether they consented or objected, and any reasons provided.

Consultation with a child

1.38

A ‘child’ is defined in section 5 as a person under the age of 18 years.

1.39

Section 33A outlines an agency and Minister’s obligations in relation to consultation with a child. Section 33A(1) states that where the third party to be consulted is a child, an agency or Minister may notify either or both of the child and their parent/guardian.

1.40

Section 33A(2) contains an exception to notifying a parent or guardian. If an agency is an information sharing entity,86 the parent or guardian of the child must not be notified if:

  • the child is a primary person;87 and
  • the parent or guardian is a person of concern88 or is alleged to pose a risk of family violence to that child.
1.41

When considering who to notify, an agency or Minister should consider the exceptions to consultation in section 33(2C) and 35(1B). The exceptions address situations where there are risks to life and safety, the risk of undue distress, or where consultation is unreasonable or not practicable in the circumstances.

When consultation is not required

1.42

There are important circumstances in section 35(1B) when notification is not required:

  • where the notification would be reasonably likely to:
    • endanger the life or physical safety of that person;
    • cause that person undue distress;
    • is otherwise unreasonable in the circumstances; or
    • where it is not practicable to do so.

Undue distress

1.43

The fact an applicant has requested access to information provided in confidence by a person and may make further FOI requests to the agency in future, is not sufficient, of itself, to establish that notifying the person of the request and conducting consultation would be likely to cause the person ‘undue distress’.91

1.44

The Act allows an applicant to make multiple requests for access. Responding to those requests is part of an agency’s duty under the Act. Annoyance or even distress at needing to respond to the requests does not meet the threshold of ‘undue’ distress.92

More information

See section 33 of the FOI Guidelines for more information about:

  • determining whether consultation is not practicable;
  • how to conduct consultation;
  • privacy considerations;
  • keeping records of consultation under the Professional Standards.

Notifying a third party of a decision

1.45

If a third party objected to the release of the information they communicated to the agency or Minister, or did not respond to the consultation, and a decision is made to release that information, section 35(1C) requires the agency or Minister to notify the person who communicated the information or matter, of:

  • the decision to grant access to the document; and
  • their right to apply to VCAT for a review of the decision.
1.46

There is no requirement to notify a third party that consented to the release of the information, provided the decision reflects release of the information or document, as agreed by the third party (section 35(1D)).

1.47

The applicant should be advised the document will only be released at the end of the third party’s 60-day review period, which begins on the day the third party is notified of the decision.

Read more about notifying applicants of third party review rights in section 27.

1.48

If a third party who objected to disclosure exercises their right to seek review by VCAT, an agency or Minister must not disclose the documents until the VCAT proceedings are finalised and directions made.

For more information, see section 50 – Applications for review by the Tribunal.

  1. Freedom of Information Act 1982 (Vic), section 35(1)(a).
  2. Freedom of Information Act 1982 (Vic), section 35(1)(b).
  3. Ryan v Department of Infrastructure [2004] VCAT 2346, [32].
  4. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [21] and Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [29], both referring to Ryder v Booth (1989) VR 869, 877. While these decisions do not deal with section 35, they refer to the principle set out in Ryder v Booth that because the FOI Act is remedial legislation, where ambiguity is encountered the rights given by the Act should be construed liberally and exceptions narrowly. 
  5. Freedom of Information Act 1982 (Vic), section 35(1)(a).
  6. Freedom of Information Act 1982 (Vic), section 35(1)(b).
  7. Ryan v Department of Infrastructure [2004] VCAT 2346, [32].
  8. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission [2013] VCAT 822, [21] and Environment Victoria Inc v Department of Primary Industries [2013] VCAT 39, [29], both referring to Ryder v Booth (1989) VR 869, 877. While these decisions do not deal with section 35, they refer to the principle set out in Ryder v Booth that because the FOI Act is remedial legislation, where ambiguity is encountered the rights given by the Act should be construed liberally and exceptions narrowly. 
  9. Sportsbet v Department of Justice [2010] VCAT 8, [77], referring to Woodford v Ombudsman [2001] VCAT 721.
  10. See Sportsbet v Department of Justice [2010] VCAT 8, [73]-[76].
  11. Sportsbet v Department of Justice [2010] VCAT 8, [77]-[78], referring to Birnbauer v Inner & Eastern Health Care Network (1999) 16 VAR 9, 17.
  12. Sportsbet v Department of Justice [2010] VCAT 8, [77].
  13. Sportsbet v Department of Justice [2010] VCAT 8, [77], referring to Woodford v Ombudsman [2001] VCAT 721.
  14. See Sportsbet v Department of Justice [2010] VCAT 8, [73]-[76].
  15. Sportsbet v Department of Justice [2010] VCAT 8, [77]-[78], referring to Birnbauer v Inner & Eastern Health Care Network (1999) 16 VAR 9, 17.
  16. Sportsbet v Department of Justice [2010] VCAT 8, [77].
  17. Ryder v Booth [1985] VR 869, 883.
  18. Woodford v Ombudsman [2001] VCAT 721, [95]; XYZ v Victoria Police [2010] VCAT 255, [265]; Barling v Medical Board of Victoria (1992) 5 VAR 542, 561-562.
  19. Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255, [265].
  20. Ryder v Booth [1985] VR 869, 883.
  21. Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366.
  22. Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366.
  23. Williams v Victoria Police (2007) 27 VAR 1194, [75].
  24. Woodford v Ombudsman [2001] VCAT 721, [93]-[98]. 
  25. Stewart v Victoria Police (1987) 2 VAR 192, 198.
  26. Shulver v Victoria Police Force (995) 9 VAR 71, 86-88; Hoskin v Department of Education and Training [2003] VCAT 946, [21].
  27. Ambikapathy v Victorian Legal Aid [1999] VCAT 1361, [17]; Marke v Victoria Police [2006] VCAT 1364, [56].
  28. Williams v Victoria Police [2005] VCAT 2516, [49]; Marke v Victoria Police [2006] VCAT 1364, [98]; Corry v Victoria Police [2010] VCAT 282, [32].
  29. Ryder v Booth [1985] VR 869, 883.
  30. Woodford v Ombudsman [2001] VCAT 721, [95]; XYZ v Victoria Police [2010] VCAT 255, [265]; Barling v Medical Board of Victoria (1992) 5 VAR 542, 561-562.
  31. Ryder v Booth [1985] VR 869, 883; XYZ v Victoria Police [2010] VCAT 255, [265].
  32. Ryder v Booth [1985] VR 869, 883.
  33. Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366.
  34. Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366.
  35. Williams v Victoria Police (2007) 27 VAR 1194, [75].
  36. Woodford v Ombudsman [2001] VCAT 721, [93]-[98]. 
  37. Stewart v Victoria Police (1987) 2 VAR 192, 198.
  38. Shulver v Victoria Police Force (995) 9 VAR 71, 86-88; Hoskin v Department of Education and Training [2003] VCAT 946, [21].
  39. Ambikapathy v Victorian Legal Aid [1999] VCAT 1361, [17]; Marke v Victoria Police [2006] VCAT 1364, [56].
  40. Williams v Victoria Police [2005] VCAT 2516, [49]; Marke v Victoria Police [2006] VCAT 1364, [98]; Corry v Victoria Police [2010] VCAT 282, [32].
  41. Casey CC v Environment Protection Authority (General) [2010] VCAT 453, [28]. In this case the information was communicated by persons from a UK environmental agency to the EPA. See also, Shaw v Department of Justice and Regulation [2018] VCAT 2038, [49], where the information was communicated by officers from other departments to the Department.
  42. Casey CC v Environment Protection Authority (General) [2010] VCAT 453, [28]. In this case the information was communicated by persons from a UK environmental agency to the EPA. See also, Shaw v Department of Justice and Regulation [2018] VCAT 2038, [49], where the information was communicated by officers from other departments to the Department.
  43. For examples where the evidence produced by the agency was insufficient, because there was no direct evidence that the ability to obtain similar information would be impaired, see Victorian National Parks Association Inc v Department of Sustainability & Environment [2012] VCAT 710; and AOZ v JLV [2019] VCAT 31, [108]-[112], [184].
  44. Ryder v Booth [1985] VR 869, 872-873, 880; Mees v University of Melbourne [2009] VSC 493, [42]; XYZ v Victoria Police [2010] VCAT 255, [267].
  45. For examples where the evidence produced by the agency was insufficient, because there was no direct evidence that the ability to obtain similar information would be impaired, see Victorian National Parks Association Inc v Department of Sustainability & Environment [2012] VCAT 710; and AOZ v JLV [2019] VCAT 31, [108]-[112], [184].
  46. Ryder v Booth [1985] VR 869, 872-873, 880; Mees v University of Melbourne [2009] VSC 493, [42]; XYZ v Victoria Police [2010] VCAT 255, [267].
  47. Mees v University of Melbourne [2009] VCAT 782, [58].
  48. Department of Agriculture and Rural Affairs v Binnie [1989] VR 836.
  49. Ryder v Booth [1985] VR 869, 880.
  50. RJE v Secretary to the Department of Justice [2008] VSCA 265, [53].
  51. Ryder v Booth [1985] VR 869, referred to in Mees v University of Melbourne [2009] VCAT 782, [54].
  52. Mees v University of Melbourne [2009] VCAT 782, [58].
  53. Department of Agriculture and Rural Affairs v Binnie [1989] VR 836.
  54. Ryder v Booth [1985] VR 869, 880.
  55. RJE v Secretary to the Department of Justice [2008] VSCA 265, [53].
  56. Ryder v Booth [1985] VR 869, referred to in Mees v University of Melbourne [2009] VCAT 782, [54].
  57. Ryder v Booth [1985] VR 869, 880.
  58. Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363, [68].
  59. Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363, [68]; approved in Smeaton v Victorian WorkCover Authority [2012] VCAT 1549, [69].
  60. Sifredi v Medical Practitioners Board [1999] VCAT 87 (affirmed on appeal Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33); Ryder v Booth [1985] VR 869, 872.
  61. Sifredi v Medical Practitioners Board [1999] VCAT 87 (affirmed on appeal Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33).
  62. Kosky v Department of Human Services [1998] VCAT 290, [22].
  63. See Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 370; Woodford v Ombudsman [2001] VCAT 721, [99]-[101].
  64. Barling v Medical Board (Vic) (1992) 5 VAR 542, 565.
  65. Graze v Commissioner of State Revenue [2013] VCAT 869, [54].
  66. Richards v Law Institute of Victoria (unreported, County Court, Vic, Dixon J, 13 August 1984), 9.
  67. Richards v Law Institute of Victoria (unreported, County Court, Vic, Dixon J, 13 August 1984), 9.
  68. Re Coleman and Director-General. Local Government Department, Pentland (1985) 1 VAR 9, 14; Dickson v Victoria Police Force (unreported, AAT of Vic, Rizkalla DP, 20 August 1993) 5-8.
  69. AOZ v JLV [2019] VCAT 31, [129]-[130]; following Corry v Victoria Police [2010] VCAT 1096 and Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33.
  70. Ryder v Booth [1985] VR 869, 880.
  71. Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363, [68].
  72. Birnbauer & Davies v Inner & Eastern Health Care Network [1999] VCAT 1363, [68]; approved in Smeaton v Victorian WorkCover Authority [2012] VCAT 1549, [69].
  73. Sifredi v Medical Practitioners Board [1999] VCAT 87 (affirmed on appeal Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33); Ryder v Booth [1985] VR 869, 872.
  74. Sifredi v Medical Practitioners Board [1999] VCAT 87 (affirmed on appeal Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33).
  75. Kosky v Department of Human Services [1998] VCAT 290, [22].
  76. See Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 370; Woodford v Ombudsman [2001] VCAT 721, [99]-[101].
  77. Barling v Medical Board (Vic) (1992) 5 VAR 542, 565.
  78. Graze v Commissioner of State Revenue [2013] VCAT 869, [54].
  79. Richards v Law Institute of Victoria (unreported, County Court, Vic, Dixon J, 13 August 1984), 9.
  80. Richards v Law Institute of Victoria (unreported, County Court, Vic, Dixon J, 13 August 1984), 9.
  81. Re Coleman and Director-General. Local Government Department, Pentland (1985) 1 VAR 9, 14; Dickson v Victoria Police Force (unreported, AAT of Vic, Rizkalla DP, 20 August 1993) 5-8.
  82. AOZ v JLV [2019] VCAT 31, [129]-[130]; following Corry v Victoria Police [2010] VCAT 1096 and Medical Practitioners Board of Victoria v Sifredi [2000] VSC 33.
  83. Defined in section 144D of the Family Violence Protection Act 2008 (Vic).
  84. Defined in section 144E of the Family Violence Protection Act 2008 (Vic).
  85. Defined in section 144B of the Family Violence Protection Act 2008 (Vic).
  86. Defined in section 144D of the Family Violence Protection Act 2008 (Vic).
  87. Defined in section 144E of the Family Violence Protection Act 2008 (Vic).
  88. Defined in section 144B of the Family Violence Protection Act 2008 (Vic).
  89. See comments made by Senior Member Dea in the context of the same phrase “undue distress” used in the section 33 exceptions to consultation, in Akers v Victoria Police [2022] VCAT 723 [35]-[43].
  90. Akers v Victoria Police [2022] VCAT 723 [35]-[43].
  91. See comments made by Senior Member Dea in the context of the same phrase “undue distress” used in the section 33 exceptions to consultation, in Akers v Victoria Police [2022] VCAT 723 [35]-[43].
  92. Akers v Victoria Police [2022] VCAT 723 [35]-[43].

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