Section 61ZA - Reasonable excuse—cabinet documents and legal professional privilege
Extract of legislation
| 61ZA | Reasonable excuse—cabinet documents and legal professional privilege | ||||
| (1) | Subject to subsection (3), and without limiting what is a reasonable excuse for the purposes of section 61X, it is a reasonable excuse for a person to refuse or fail to comply with a requirement set out in the notice if— | ||||
| (a) | the information or document— | ||||
| (i) | is an exempt document under section 28; or | ||||
| (ii) | is information that if included in a document would make that document an exempt document under section 28; or | ||||
| (b) | the information or document— | ||||
| (i) | is an exempt document under section 32; or | ||||
| (ii) | is information that if included in a document would make that document an exempt document under section 32. | ||||
| (2) | The Secretary to the Department of Premier and Cabinet may certify that information or a document described in subsection (1)(a)— | ||||
| (a) | in the case of information, is information which, if included in a document, would make the document an exempt document of a kind referred to in section 28(1); | ||||
| (b) | in the case of a document, is or, if it existed, would be an exempt document of a kind referred to in section 28(1). | ||||
| (3) | If a notice to produce or attend is served on a person during a review of a decision that relates to a document claimed to be exempt under section 28 or 32, it is not a reasonable excuse for a person to refuse or fail to comply with the notice for the reason that the information or document— | ||||
| (a) | is an exempt document under section 28 or 32; or | ||||
| (b) | is information that if included in a document would make that document an exempt document under section 28 or 32. | ||||
A person who receives a notice to produce or attend must do what the notice says, or they may have to pay a penalty.2 However, the person may not have to comply with the notice if they have a reasonable excuse.
A reasonable excuse includes where the information or a document is exempt under:
Section 28 is intended to ensure the Cabinet process remains confidential.11 It protects the principle of collective ministerial decision making and responsibility, which is central to the working of responsible government.
Section 28(1) exempts five types of cabinet documents from disclosure:
- the official record of any deliberation or decision of the Cabinet;12
- a document that has been prepared by a Minister, or prepared by an agency on behalf of a Minister, for the purpose of submission for consideration by the Cabinet;13
- a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet;14
- a document that is a copy or draft of, or contains extracts from, a document referred to in the above three dot points;15 or
- a document which, if disclosed, would involve the disclosure of any deliberation or decision of the Cabinet.16
The Secretary to the Department of Premier and Cabinet may certify that information or a document is exempt under section 28(1)
The Secretary to the Department of Premier and Cabinet may certify information or a document (whether it exists or not) would be exempt under section 28(1).20 This permits the Secretary to certify that, on the face of the notice, the requested information or documents would be exempt under section 28(1).
Section 32(1) exempts documents that would be privileged from production in legal proceedings on the grounds of either legal professional privilege (LLP) or client legal privilege (CLP). Both LLP and CLP protect confidential communications between a lawyer and their client, to promote full and frank communication between them.
There is an exception to this reasonable excuse. If the Information Commissioner serves a notice to produce or attend during a review under Part VI, the person must provide the requested information or documents even if section 28 or section 32 applies.22
Example
After reasonable attempts to informally request information from the agency during a review under Part VI, OVIC serves a notice to produce on the agency under section 49KB. The notice requires the agency to produce information relating to a document that the agency claims is exempt under section 28(1)(d).
The notice outlines that the agency cannot rely on the reasonable excuse in section 61ZA(1)(a) because the decision under review relates to a document claimed to be exempt under section 28.
The agency must provide the requested information. If it fails to do so, the person the notice was directed to may be liable for penalties under section 61X.
- Freedom of Information Act 1982 (Vic), section 61X.
- Freedom of Information Act 1982 (Vic), section 61X.
- See Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [16].
- Freedom of Information Act 1982 (Vic), section 28(1)(a).
- Freedom of Information Act 1982 (Vic), section 28(1)(b).
- Freedom of Information Act 1982 (Vic), section 28(1)(ba).
- Freedom of Information Act 1982 (Vic), section 28(1)(c).
- Freedom of Information Act 1982 (Vic), section 28(1)(d).
- Freedom of Information Act 1982 (Vic), section 28(2).
- Freedom of Information Act 1982 (Vic), section 28(3).
- See Davis v Major Transport Infrastructure Authority [2020] VCAT 965 [16].
- Freedom of Information Act 1982 (Vic), section 28(1)(a).
- Freedom of Information Act 1982 (Vic), section 28(1)(b).
- Freedom of Information Act 1982 (Vic), section 28(1)(ba).
- Freedom of Information Act 1982 (Vic), section 28(1)(c).
- Freedom of Information Act 1982 (Vic), section 28(1)(d).
- Freedom of Information Act 1982 (Vic), section 28(2).
- Freedom of Information Act 1982 (Vic), section 28(3).
- Freedom of Information Act 1982 (Vic), section 61ZA(2).
- Freedom of Information Act 1982 (Vic), section 61ZA(2).
- Freedom of Information Act 1982 (Vic), section 61ZA(3).
- Freedom of Information Act 1982 (Vic), section 61ZA(3).
