Australian Education Union, NSW Teachers Federation Branch v New South Wales Department of Education

[2022] NSWCATAD 97

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Australian Education Union, NSW Teachers Federation Branch v New South Wales Department of Education [2022] NSWCATAD 97

Hearing dates:

4 February 2022

Date of orders:

21 March 2022

Decision date:

21 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Dunn, Senior Member

Decision:

1. The decision under review is affirmed in so far as it relates to Documents 2 and 3.

2. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – Cabinet information – document that reveals or tends to reveal the position a Minister has taken, is taking, will take, is considering taking or has been recommended to take on a matter in Cabinet – reasonable grounds

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Government Sector Employment Act 2013 (NSW)

Cases Cited:

Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101

D’Adam v New South Wales Treasury [2014] NSWCATAD 68

Fiddletown Investments Limited v Department of Premier and Cabinet ; Fiddletown Investments Limited v NSW Treasury [2021] NSWCATAD 17

Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6

Transport for NSW & Ors v Robinson [2018] NSWCATAP 123

Category:

Principal judgment

Parties:

Australian Education Union, NSW Teachers Federations Branch (Applicant)
New South Wales Department of Education (First Respondent)
Premier of New South Wales (Second Respondent)

Representation:

Counsel:
D Bhutani (Applicant)
R Pietriche (First and Second Respondent)

Solicitors:
NEWLaw (Applicant)
Crown Solicitor (First and Second Respondent)

File Number(s):

2021/00254702

Publication restriction:

Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

REASONS FOR DECISION

Background

1. This is an application to the Tribunal under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for a review of the decision of the First Respondent dated 17 August 2021 to refuse access to documents which were deemed responsive to an application made by the Applicant on 29 July 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). That application sought access to “briefs, presentations, summaries, drafts, memos and reports arising from” work Deloitte Touche Tohmatsu (Deloitte) was contracted to undertake for the First Respondent, the Department of Education, on a “Longer Term Teacher Supply Strategy”. The First Respondent refused access to the documents sought on the basis that there was a conclusive presumption that there is an overriding public interest against disclosure because the documents contain information that was considered to be Cabinet information under Clause 2 of Schedule 1 of the GIPA Act. That is a decision which is administratively reviewable by the Tribunal by virtue of s 80(d) of the GIPA Act.

2. The application for review originally extended to five documents disclosure of which was refused, namely:

1. Document 1 entitled “TSS Final Report dated 23 October 2020” (the Final Report) (the certification of Cabinet documents which accompanied the decision under review in fact identified 9 documents, however four of these documents were appendices to the Final Report and those appendices have been treated for the purposes of these proceedings as part of Document 1);

2. Document 2 entitled “NSW Teacher Workforce Modelling Report dated October 2020”;

3. Document 3 entitled “Spreadsheet regarding NSW Teacher Workforce Working Paper”;

4. Document 4 entitled “Spreadsheet regarding TSS Initiative Estimates and Assumptions”; and

5. Document 5 entitled “Letter from Deloitte to the Department dated 19 November 2020”.

3. However, in written submissions and at the hearing of the Application, the Applicant confirmed that it withdrew its application in so far as Documents 1, 4 and 5 are concerned.

4. The Premier of New South Wales is joined as a respondent in the proceedings in accordance with s 106(5) of the GIPA Act and was represented in the proceedings by the same counsel as the Department of Education. A reference in these reasons to the Respondents is a reference to the Department of Education and the Premier.

Relevant Legislation

5. The object of the GIPA Act is set out in s 3 of the Act. That section provides that, in order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of the Act is to open government information to the public by, amongst other things, giving members of the public an enforceable right to government information and providing that access to government information is restricted only when there is an overriding public interest against disclosure. Section 3(2) provides that it is the intention of Parliament that the Act be interpreted and applied so as to further that object.

6. “Government information” is defined by s 4 of the Act as information contained in a record held by an “agency” which is, in turn, defined to include a “Public Service agency”. “Public Service agency” is defined in Schedule 4 to the Act as a Public Service agency under the Government Sector Employment Act 2013 (NSW), which in turn defines, by s 3 of that Act, a Public Service agency to include a Department listed in Part 1 of Schedule 1 to that Act. Part 1 of Schedule 1 to that Act includes the Department of Education, the First Respondent.

7. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

8. Section 9 of the GIPA Act provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.

9. Section 13 provides that there is an overriding public interest against disclosure of government information for the purposes of the Act if (and only if) the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

10. However, section 14 of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of certain government information described in Schedule 1.

11. Schedule 1 Clause 2 relates to Cabinet information and provides:

2 Cabinet information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as "Cabinet information") contained in any of the following documents:

(a) a document that contains an official record of Cabinet,

(b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet’s consideration (whether or not the document is actually submitted to Cabinet),

(c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet’s approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given),

(d) a document prepared after Cabinet’s deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions,

(e) a document prepared before or after Cabinet’s deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,

(f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e).

(2) Information contained in a document is not Cabinet information if:

(a) public disclosure of the document has been approved by the Premier or Cabinet, or

(b) 10 years have passed since the end of the calendar year in which the document came into existence.

(3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1).

(4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would:

(a) reveal or tend to reveal information concerning any Cabinet decision or determination, or

(b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet.

(5) In this clause, "Cabinet" includes a committee of Cabinet and a subcommittee of a committee of Cabinet.

Approach required to be taken by Tribunal

12. Each of the parties has provided submissions as to the approach to be taken by the Tribunal and they are in general agreement. Whereas typically, in determining an application for administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s 63 of the ADR Act), the GIPA Act sets out a special procedure for the Tribunal to follow with respect to decisions about Cabinet information and Executive Council information, as follows:

106 Decisions about Cabinet and Executive Council information

(1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency’s claim and is not authorised to make a decision as to the correct and preferable decision on the matter.

(2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it.

(3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter.

(4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter.

(5) The Premier is a party to any proceedings on an application under this section.

13. In D’Adam v New South Wales Treasury [2014] NSWCATAD 68, Senior Member Walker explained the operation of section 106 as follows:

"45 No doubt in recognition of Cabinet's role and functioning as a collective, indirectly elected executive branch of government, s 106 establishes a special and very different decision-making matrix for claims to the Cabinet information presumption. Not only is the tribunal "limited to deciding whether there were reasonable grounds for the agency's claim", but it is explicitly "not authorised to make a decision as to the correct and preferable decision on the matter" (s 106(1)). The tribunal's task is thus not to investigate the claim de novo or to engage in normal merits review. Its function is more analogous to that of a court undertaking judicial review.

46 In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". "Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them".

14. Accordingly, on this application, the Tribunal is limited to deciding whether there were reasonable grounds for the claim that Documents 2 and 3 contain Cabinet information: Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101 at [19].

15. The First Respondent bears the onus of establishing that the decision was justified, namely that it had reasonable grounds for the claim ( s 105(1)) and it must do so on the balance of probabilities: D’Adam at [47], Bennison at [19].

16. If, on the basis of the Respondents’ evidence and submissions, the Tribunal is not satisfied that the First Respondent had reasonable grounds for its claim in relation to a document, the Tribunal may then require the document to be produced in evidence before it in accordance with section 106(2): Bennison at [20].

17. The Tribunal is not bound by the rules of evidence. It may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s38(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).

The material before the Tribunal and confidentiality orders made at the hearing

18. The Respondents rely on the Affidavit of Ms Sarah Barrett-Reid affirmed on 17 November 2021 as well as submissions dated 17 November 2021 both of which were filed on a confidential basis. The Respondents submitted that certain aspects of that evidence and those submissions were confidential as their disclosure would result in information in respect of which there is claimed to be an overriding public interest against disclosure being revealed to the Applicant and to the public. Copies of that affidavit and those submissions were provided to the Applicant with the material the subject of the claim for confidentiality (Confidential Material) redacted. The redacted version of Ms Barrett-Reid’s affidavit was marked Exhibit R1 and the unredacted version filed confidentially was marked Exhibit CR2. The Applicant indicated that it did not wish to cross-examine Ms Barrett-Reid.

19. The Respondents also rely on submissions dated 17 January 2022 in reply in respect of which no claims for confidentiality have been made.

20. At the beginning of proceedings there was a very short hearing in the absence of the Applicant, the Applicant’s representative and the public to clarify the confidentiality orders the Respondents were seeking.

21. The public hearing then commenced and the Respondents sought an order pursuant to s 64(1)(d) of the NCAT Act, that the disclosure of the Confidential Material be restricted to the Respondents, the legal representatives of the Respondents and the Tribunal, and that order was made. In this regard, I took into account the fact that the gist, but not the detail, of some of the evidence in respect of which confidentiality orders were sought has been disclosed to the Applicant in the Respondents’ open reply submissions.

22. The Respondents made open submissions to the Tribunal relying on the evidence of Ms Barrett-Reid and referring to the Respondents’ written submissions, other than the Confidential Material, as well as its submissions in reply.

23. Section 107 of the GIPA Act provides that the Tribunal must on the application of the relevant agency, receive evidence and hear argument in the absence of the public, the Applicant and the Applicant’s representative if the Tribunal is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is claimed to be an overriding public interest against disclosure. Accordingly, on the First Respondent’s application, I made an order under s 49 (2) of the NCAT Act that part of the hearing be conducted in private so as to allow the Respondents to direct the Tribunal to the aspects of the affidavit and submissions in respect of which confidentiality orders had been made. A further short hearing was then conducted in private.

24. On the resumption of the hearing in public, the Applicant relied on written submissions dated 15 December 2021 and counsel for the Applicant supplemented those submissions orally.

25. The Information Commissioner appeared and relied on written submissions filed on 24 January 2022.

The evidence

26. Ms Barrett-Reid is currently the Director of the Teacher Supply and Workforce Strategy branch of the First Respondent, the Department of Education, a role she has held since September 2020. (Ms Barrett- Reid refers to the First Respondent in her evidence as the Department.) Prior to this role, she held the position of Director Talent Management of the Department from around September 2019. In that role she was responsible for leading several workforce strategies, one of which was the teacher supply strategy. She retained responsibility for overseeing the development and implementation of the teacher supply strategy when she moved into her current role.

27. In her role, she is responsible for preparing verbal and written policy advice and recommendations for the consideration of the Minister for Education and Early Childhood Learning (the Minister) and, for more significant policies (such as the teacher supply strategy), preparing Cabinet submissions for the Minister to make to Cabinet.

28. Ms Barrett-Reid annexes the NSW Cabinet Manual to her affidavit. This Manual describes the process for the preparation of proposals to Cabinet, including the development of Cabinet submissions. The Manual states (at page 4) “Cabinet documents belong to the State and are strictly confidential. This is essential to the maintenance of collective responsibility for Cabinet decisions” and then proceeds to outline the ways in which confidentiality of Cabinet material is protected.

29. Ms Barrett-Reid explained that in 2019 the Department identified the need for a long-term strategy to address the supply of teachers across public schools in New South Wales, and, in particular, the supply of teachers in particular subject areas and geographical regions. As the teacher supply strategy was likely to have significant funding and policy implications, Ms Barrett-Reid understood and expected that it would ultimately require consideration and endorsement by the Expenditure Review Committee of Cabinet (ERC), which would ultimately decide whether the strategy would be allocated funding in the State budget, and by the Cabinet Committee on Delivery and Performance (DaPCo), which monitors and reviews the delivery of NSW Government projects, programs and services. In March 2020, Ms Barrett-Reid was informed that a “bid” she had prepared, proposing that the teacher supply strategy be included on the forward agenda for DaPCo consideration, had been approved by the Minister.

30. In June 2020, the Department engaged Deloitte to assist in the development of the teacher supply strategy for Cabinet consideration. Ms Barrett-Reid briefed Deloitte at the start of the engagement. She states that Deloitte’s mandate was to conduct research and data analysis to understand the scope of the teacher supply challenge likely to be experienced in New South Wales and to prepare a report setting out its recommended strategy, having regard to the scope and nature of the teacher supply and demand identified by their modelling, which could then be submitted to Cabinet for consideration.

31. From June 2020 to September 2020, Deloitte conducted its research and developed a long-term teacher supply strategy (Strategy). In November 2020, Deloitte delivered its final report with respect to the Strategy (Final Report). The Final Report is Document 1 in the proceedings, in respect of which the Applicant has now withdrawn its application. It is approximately 270 pages. (Although the Applicant has withdrawn its application in respect of the Final Report, it is necessary to outline the evidence in respect of the Final Report, because the Respondents rely in their submissions upon the interrelationship between the Final Report and Documents 2 and 3.)

26. In December 2020, the Strategy was presented to the Department’s Executive Team to seek approval to submit the Strategy to the Minister. Ms Barrett-Reid prepared the papers for that presentation which included a condensed version of the Final Report which set out the proposed content, initiatives and costings of the Strategy. The Executive Team approved submission of the Strategy to the Minister and the preparation of a business case for funding approval. The condensed version of the Final Report was provided to the Minister for her consideration in January 2021.

27. The business case was developed between January and March 2021 and Ms Barrett-Reid led the team responsible for its development. The business case built upon Deloitte’s work, as set out in the Final Report, with additional cost-benefit analysis required to meet Treasury’s requirements.

28. Separately, between March and May 2021, Ms Barrett-Reid led the drafting and development of a Cabinet Submission in respect of the Strategy which was submitted to DaPCo in June 2021 by the Minister. The Strategy presented in the Cabinet Submission was based upon a combination of the Strategy as developed by Deloitte set out in the Final Report, the cost-benefit analysis undertaken as part of the business case and some refinements, including a summary of the Final Report, so that it could be presented in a manner appropriate for DaPCo’s consideration.

29. The Final Report sets out Deloitte’s proposed long-term teacher supply strategy. Deloitte’s Final Report itself was not submitted to DaPCo for consideration. However, a summarised version of the Final Report containing the substance of the strategic approach and analysis, modelling and initiatives developed by Deloitte, as well as slightly refined costing estimates, was submitted to DaPCo. The modified version of the Final Report was Attachment A to the Cabinet Submission. The contents and detail of the Final Report are also extracted in several sections of the Cabinet Submission.

30. The Final Report also provides a detailed analysis of various hypothetical scenarios and outcomes of teacher supply and various proposed initiatives which, if implemented, would assist to bring about each hypothetical scenario.

31. [NOT FOR PUBLICATION]

32. Ms Barrett-Reid states that if the Final Report was disclosed, it would reveal or tend to reveal the position that the Minister was recommended to take, considered taking and did in fact take in relation to the Strategy in the Cabinet Submission.

33. Document 2 is the NSW Teacher Workforce Modelling Report prepared by Deloitte to forecast the teacher supply requirement for NSW government schools to 2025 (Modelling Report).

34. Ms Barrett-Reid states that the Modelling Report has two purposes. First, the modelling detailed in the report is integral to identifying the scope and detail of teacher supply and demand to which the Strategy has been developed to respond.

35. Ms Barrett-Reid states that understanding the scope and magnitude of the teacher supply challenge informed the Department’s hypotheses of the key issues to be addressed in the Strategy and directly informed the initiatives that were recommended by Deloitte to respond to the issues. This modelling informed sections of the Final Report and, in turn, a section of the Cabinet Submissions.

36. Further, she states that analysis summarised from this modelling was included in advice provided to the Department’s Senior Executive for the purpose of briefing the Minister on the development of the Strategy, as the Minister required an overview of the analysis and the insights produced to understand the scope of the teacher supply challenge.

37. [NOT FOR PUBLICATION]

38. Ms Barrett-Reid states that by reason of the close nexus between the Strategy itself and the projections, estimates and assumptions in the Modelling Report, disclosure of the Modelling Report would reveal or tend to reveal the position that the Minister had taken or, at least, had been recommended to take in relation to the Strategy.

39. Document 3 is a spreadsheet which contains the raw data which directly feeds into the modelling in Document 2.

40. Ms Barrett- Reid states that the release of this document would tend to reveal the position taken by the Minister in respect of the Strategy.

41. [NOT FOR PUBLICATION]

42. Ms Barrett-Reid’s evidence was not challenged and I accept it.

Consideration

49. Clause 2(5) of Schedule 1 to the GIPA Act provides that “Cabinet” includes a committee of Cabinet and a subcommittee of a committee of Cabinet. It is not in dispute that the ERC for which the business case was prepared (albeit, it is not established on the evidence that the business case was ultimately submitted to the ERC) and DaPCo to which the Cabinet Submission was submitted each constitute Cabinet for the purposes of the Act.

50. It is also not in dispute that where a document contains some information that is Cabinet information and other information that is not Cabinet information, the document cannot be redacted to exclude the Cabinet information: Lock the Gate Alliance v Department of Planning and Environment & department of Premier and Cabinet [2019] NSWCATAD 6 at [27].

51. The ground on which disclosure of Documents 2 and 3 was refused was that they fall under the definition of Cabinet information under cl 2(1)(e) of Schedule 1 of the GIPA Act.

52. The Appeal Panel explained in Transport for NSW & Ors v Robinson [2018] NSWCATAP 123 at [19] that cl 2(1)(e) involves a three step process:

19.A plain reading of the provision makes clear that it involves the following steps.

(1) there must be a document prepared either before or after Cabinet’s deliberation or decision on a matter;

(2) it must reveal or tend to reveal a defined position; and

(3) the defined position is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet.

53. The provision is not limited to information that was actually deliberated upon or went to Cabinet: Transport for NSW & Ors v Robinson at [20]. As such, nothing turns on the absence of evidence as to the submission of the business case to ERC.

54. The Applicant accepts that the evidence establishes that both Documents 2 and 3 were prepared before the DaPCo deliberated on the issue so that step one in the above three step process is not in issue.

Defined position a Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet

55. A “defined position” should not be read as referring to a single position. Lock the Gate Alliance at [60] – [61]; Fiddletown Investments Limited v Department of Premier and Cabinet; Fiddletown Investments Limited v NSW Treasury [2021] NSWCATAD 17 at [47].

56. As the Tribunal noted in Lock the Gate Alliance at [60]- [61]:

60.A “defined position” could be read as referring to a single position. However, to do so would be to ignore the practical reality of the Cabinet process. Ministers routinely consider more than one position and their departments often recommend several options for consideration. On occasions, Cabinet itself requires Ministers to bring forward a range of options for its consideration.

61.As the respondents point out, if the GIPA Act only protected from disclosure one position on a particular matter, this would have a chilling effect on Cabinet deliberations and negatively impact decision-making and policy development within Cabinet. Indeed, this is the very point made by the Appeal Panel in Robinson as to why cl 2(1)(e) cannot be limited to information that was actually deliberated upon or went to Cabinet. There the Appeal Panel referred to the High Court’s unanimous judgment in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615-616 where the court referred extensively to the need to keep the deliberations of Cabinet, which could often entail robust discussion of differing views and which may involve the exploration of more than one controversial path, confidential.

57. The Applicant confirmed in its submissions that it does not contend that multiple positions could not be a “defined position” and accepts that if a document would reveal or tend to reveal multiple positions being considered by a Minister that would constitute Cabinet information for the purposes of cl 2(1)(e).

58. The Applicant submits that neither Document 2 or 3 reveal or tend to reveal a “position” as they merely establish the context of the issue of teacher supply, rather than any policy response that the Minister was considering taking in relation to that issue. The Applicant submits that the term “position” should not be interpreted to include all information that a Minister had available to them in reaching a particular stance on an issue. Nor is it sufficient that a document had an impact on or “informed” a subsequent document, such as the Final Report, that is considered Cabinet information.

59. The Respondents accept that it is not sufficient to attract the definition of Cabinet information, that a document merely informs another document which is considered Cabinet information. However the Respondents submit that both Documents 2 and 3 go beyond merely establishing the context of the teacher supply problem and “informing” the Final Report and rely in this regard upon the confidential aspects of Ms Barrett-Reid’s evidence.

60. The Final Report sets out Deloitte’s proposed long term teacher supply strategy. It also provides a detailed analysis of various hypothetical scenarios and outcomes of teacher supply and various proposed initiatives which, if implemented, would assist to bring about each hypothetical scenario.

61. [NOT FOR PUBLICATION]

62. Ms Barrett-Reid states, and the Respondents submit that, if the Final Report was disclosed, it would reveal or tend to reveal the position that the Minister was recommended to take (Deloitte’s recommended strategy), considered taking (at least the scenario which was chosen to be put to Cabinet by the Minister) and did in fact take (the scenario which was chosen to be put to Cabinet by the Minister) in relation to the Strategy in the Cabinet Submission.

63. I accept that the hypothetical scenario and the initiatives which would assist to bring it about as recommended by Deloitte in the Final Report amounts to a “defined position”, in the sense required by Robinson, which was recommended to the Minister to take on the matter in Cabinet. I also accept that the hypothetical scenario and the initiatives which would assist to bring it about which was chosen by the Minister to be put in relation to the Strategy in the Cabinet Submission was a “defined position” that the Minister was at one stage considering taking and has now taken on the matter in Cabinet. It is not clear on the evidence, however, whether the Minister was in fact considering taking any position (ie adopting any other hypothetical scenario and the initiatives to implement that scenario) other than the one she chose to put to Cabinet.

64. [NOT FOR PUBLICATION]

65. I accept, on the basis of Ms Barrett-Reid’s evidence, that Document 2 does go beyond merely establishing the context of the teacher supply problem and merely informing the Final Report. I accept the Respondents’ submission, which is made in the open submissions in reply, that Document 2 sets out forecasts generated by the modelling for the future supply of teachers for each of the hypothetical scenarios proposed by Deloitte in the Final Report which forecasts reveal the investment options which could be taken to pursue each hypothetical scenario. As noted above, I accept that at least one of these hypothetical scenarios and the initiatives which would assist to bring it about represents a “position” the Minister has been recommended to take, was considering taking and has in fact taken on the matter in Cabinet.

66. I accept that, as such, there were reasonable grounds for the claim that the information in Document 2 is Cabinet information because Document 2 reveals or tends to reveal the position that the Minister had been recommended to take, was considering taking and has taken in relation to the Strategy in Cabinet.

67. The Respondents submit that Document 3 sets out the assumptions and methodology employed to develop each of the hypothetical scenarios and, therefore that document also reveals the hypothetical strategy that was recommended to, and adopted by the Minister, as well as the various alternative strategy designs and their outcomes which the Minister considered.

68. [NOT FOR PUBLICATION]

69. I accept, on the basis of Ms Barrett-Reid’s evidence, that there were reasonable grounds for the claim that the information in Document 3 is Cabinet information because Document 3 reveals or tends to reveal the position that the Minister was considering taking, had been recommended to take and has in fact taken in relation to the Strategy in Cabinet.

Solely Factual Material

70. The Applicant also submits that Documents 2 and 3 should not be considered Cabinet information as they consist solely of factual information.

71. Under cl 2(4) of Schedule 1 of the GIPA Act, information is not Cabinet information to the extent that it consists solely of factual material unless the information is contained in a document that, either entirely or in part, would:

(a) reveal or tend to reveal information concerning any Cabinet decision or determination, or

(b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet

72. It is to be noted that the language in cl 2(4)(b) is narrower than the language in cl 2(1)(e) and it operates to exclude information which would reveal or tend to reveal the position that a Minister “has taken, is taking or will take” on a matter and does not extend to information which would reveal or tend to reveal a position the Minister was considering taking or has been recommended to take.

73. The issue of whether certain maps and projections were “factual information” was considered by the Tribunal in D’Adam at [71], where the Tribunal held:

71. The statutory test, however, is whether the information consists solely of factual material, not whether it contains factual material as well as other material of a non-factual nature. In this case the information … consists to a great extent of targets, projections and estimates. While the setting of targets and the making of projections and estimates is in one sense a fact, the information itself consists also of opinions or recommendations about the desirability, likelihood and attainability of certain outcomes. It is not solely factual material. Nor does it lose that character because of the largely in numerical form…

74. [NOT FOR PUBLICATION]

75. As the Respondents submit in the open submissions in reply, both documents contain assumptions applied by Deloitte in modelling future teacher supply and, as such, contain opinions as to the likelihood of certain outcomes. The Respondents also submit the documents contain opinion as to the approach to be adopted in designing the response to the issue. I do not accept the evidence supports the latter submission at least in so far as Document 3 is concerned. I am, nonetheless, satisfied that there were reasonable grounds for the claim that neither Document 2 nor Document 3 contain “solely” factual information.

76. In any event, even if these documents did contain solely factual information, for the reasons outlined above, I accept that there were reasonable grounds for the claim that their disclosure would reveal or tend to reveal the position the Minister has taken on the issue in Cabinet such that the caveat in cl 2(4)(b) would be engaged.

Conclusion

77. I am therefore satisfied that the First Respondent has discharged the onus of proving on the balance of probabilities that the First Respondent had reasonable grounds for the claim that Documents 2 and 3 contain Cabinet information as defined in cl 2(1)(e) of Schedule 1 to the GIPA Act and, as such, there is a conclusive presumption that there is an overriding public interest against their disclosure.

78. In those circumstances I do not consider it is necessary to require either Document 2 or 3 to be produced in evidence.

79. The Respondents have submitted that I should affirm the decision under review in so far as Documents 1, 4 and 5 are concerned. As the Applicant has withdrawn the application in so far as those documents are concerned, I do not consider it either necessary or appropriate to do so.

The Tribunal orders:

1. The decision under review is affirmed in so far as it relates to Documents 2 and 3.

2. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 21 March 2022