Section 56 - Inspection of exempt documents by Tribunal

Section 56 relates to how the Victorian Civil and Administrative Tribunal (VCAT) may handle and talk about documents in a review proceeding.

Generally, when an agency or Minister provides a document that is claimed to be exempt to the Victorian Civil and Administrative Tribunal (VCAT) for the purpose of the VCAT review, VCAT cannot disclose the exempt document to anyone outside of VCAT.⁴ However, there is an exception to this, outlined below.

The VCAT member who is handling the review and VCAT staff may receive the exempt document for the purpose of the review.⁵ VCAT must return the document to the agency or Minister after the review is complete.⁶

While VCAT must generally maintain the confidentiality of documents claimed to be exempt, VCAT may make any orders it thinks fit.¹⁵ In making an order, VCAT is guided by the principle that the contents of a document should not normally be disclosed except in accordance with an order under section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).¹⁶

Section 51(2) of the VCAT Act outlines that VCAT may make the following orders:

• affirm the decision under review; or
• vary the decision under review; or
• set aside the decision under review and make another decision in substitution for it; or
• set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of VCAT.

VCAT may order that the contents of an exempt document produced to VCAT be disclosed to an Australian lawyer representing an applicant.¹⁷

By looking at the exempt documents, the applicant’s lawyer may consider there is little interest in them, or it may be agreed that large sections of the documents are not in dispute.¹⁸ It can also help with taking evidence, making submissions, and making enquiries.¹⁹

If a qualified legal practitioner gives an undertaking that confidentiality will be observed, VCAT may consider this as a factor in support of granting inspection access under section 56(3).²⁰ Lawyers have an overarching duty to the courts.²¹ Breaching an undertaking may constitute serious misconduct.²²

VCAT will not always make an order allowing an applicant’s lawyer to see the documents.

Where the review relates to a document claimed to be exempt under:

• section 28 (Cabinet documents);
• section 29A (documents affecting national security, defence and international relations);
• section 31 (law enforcement documents); or
• section 31A (documents relating to IBAC),
• VCAT may announce its findings in terms which neither confirm nor deny the existence of the document.²⁶

VCAT may also announce its findings in terms which neither confirm nor deny the existence of a particular document where the review relates to a document claimed to be exempt because it would involve an unreasonable disclosure of personal affairs information because it would increase the risk to:

• a primary person’s safety from family violence;²⁷ and
• the safety of a child or group of children.²⁸

Where there is a high volume of documents, VCAT can order that a proceeding be conducted with reference to a sample of documents. VCAT has power to decide the matter on the basis of a representative sample of documents.

To ensure the sample is representative, VCAT can inspect all relevant documents.³⁰

It has been submitted that VCAT must be careful when making and supervising orders about sampling to ensure that such orders do not operate unfairly to either party.