Bayne v Department of Premier and Cabinet

[2016] NSWCATAD 69

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Bayne v Department of Premier and Cabinet [2016] NSWCATAD 69
Hearing dates:	16 February 2016
Date of orders:	13 April 2016
Decision date:	13 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the respondent is affirmed in respect of the material withheld pursuant to Schedule 1 of the GIPA Act .
Catchwords:	GIPA Act - Legal professional Privilege- Information withheld – Conclusive presumption against disclosure – Confidential manner of hearing and reasons – Whether context of information should be disclosed further bearing in mind release of majority of information
Legislation Cited:	Evidence Act 1995 Government Information (Public Access) Act 2009
Cases Cited:	Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 Bayne v Department of Environment and Heritage [2016] NSWCATAD 52
Category:	Principal judgment
Parties:	Rosemary Bayne (Applicant) Department of Premier and Cabinet (Respondent)
Representation:	Solicitors: Mr A Field (as agent for Applicant) NSW Crown Solicitors Office (Respondent)
File Number(s):	1510448, 1510534, 1510536

Reasons for decision

1. These reasons relate to three separate administrative review applications filed by the applicant seeking a review of a decision under the Government Information (Public Access) Act 2009 (the GIPA Act), in respect of three applications under the GIPA Act.

Background

2. When the three applications for review were lodged with the Tribunal in 2015, one matter contained a decision by the respondent (1510534), and two matters 1510535 and 1510536 were lodged under the provisions whereby a review can be sought where a decision had not been made within a specified time. (A deemed decision for review).

3. Between lodgement and the hearing date, there had been significant consideration of the matters in particular by the respondent, whereby further decisions and supplementary decisions had established remaining residual disputes between the parties as to what documents were pressed by the applicant and what documents were withheld by the respondent. Of the remaining issues, these matters were all heard on 16 February 2016 whereby a significant portion of the hearing involved a confidential hearing under the provisions of section 107 of the GIPA Act.

4. Prior to any final determination of the matters, as various concessions had been made, and interlocutory rulings by the Tribunal in the confidential session, at the conclusion of the hearing the following was agreed between the parties with the Tribunal:

• Matter 1510534 remitted to the respondent for a redetermination providing the applicant with the material ‘conceded’ and agreed by the respondent in the confidential session. Such redetermination to be finalised by 23 February 2016.

• Applicant to notify Tribunal and respondent as to whether they press the sufficiency of search ground (section 53 GIPA Act). Notification to be provided by 1 March 2016. If that matter is pressed then the matter is part heard, if not pressed then the matter is reserved.

5. There were other GIPA Act matters between the parties running separately before the Tribunal. Various attempts were made to consolidate these in the period 16 February 2016 to 5 April 2016. At a Case Conference / Planning Meeting on 5 April 2016 the parties agreed after much informal analysis and consideration, that all residual matters between the parties (bar one) were resolved. This agreement related to these three sets of proceedings and two other proceedings (1510535 and 1510818).

6. The remaining issues for consideration relates solely to the Tribunal consideration of the characterisation of the material dealt with in the Confidential Session on 16 February 2016. As indicated at paragraph 3 (first dot point), some of the material from that session has now been provided to the applicant. It is the residue of that material that is now to be decided in these written reasons.

7. By way of background, the applicant is one of a number of former business owners who traded from the Jenolan Caves location prior to their leases being cancelled and an administrator being appointed. There have been a number of GIPA Act applications before the Tribunal for access to government information from two specific agencies including the respondent in this matter.

8. The applicant represents a group of these business owners formerly associated with Jenolan Caves. The above background is in my view necessary in order to understand the context of the applications for information.

9. I will confine these reasons to the remaining outstanding material only. In my view it is not necessary to further explore any of the related issues, their reasons for resolution or adjudication, and the details of separate applications under the GIPA Act.

10. The respondent relied on a conclusive presumption against disclosure both in their response to the application and at hearing. The specific ground being that the material forms part of material for which a claim of legal professional privilege could be made, and as such it is captured by Clause 5 of Schedule 1 of the GIPA Act.

11. Therefore the task of the Tribunal is to determine whether the material withheld by the respondent can be assessed and properly characterised as material to which would fall under the provisions of Clause 5 of Schedule 1 of the GIPA Act.

Applicable legislation

12. The relevant provisions of the GIPA Act provide:

Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

Consideration

13. I have examined the material provided on a confidential basis by the respondent. Other than the material already released by the respondent following the confidential session on 16 February 2016, the material provided to the Tribunal does (to my mind) constitute material which falls within the criteria of Clause 5 of Schedule 1.

14. The material is contained within the Confidential Exhibits ‘RC 1’ filed in proceedings 1510534, and ‘RC 1’ filed in proceedings 1510536.

15. In respect of the legal opinion or advice, I note that the respondent has not waived privilege. In addition I note that there are other matters and material referred to in that advice and the material is in practice to be considered jointly with that material. The material is included and some of it is characterised as cabinet material. The material was in effect considered initially in confidential session, and in so far as the Tribunal established a preliminary view that some of that material should not be withheld (a view that the respondent conceded), the remaining material has been thoroughly considered.

16. In my view the provenance and import of the data or information within those documents is sufficiently related to the legal advice and is information brought into being for the purpose of providing that legal advice or reflecting that advice. In addition much of the data could be characterised as data or information which would be covered by other provisions of Schedule 1. However, where possible the respondent has released as much material as they assess as not identifying or disclosing a legal position adopted from legal advice sought and obtained by the respondent.

17. The withheld information is in my view clearly providing advice about those documents, including their import and meaning, and their purpose and impact if any on the agency.

18. In the case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 I addressed the issue of Clause 5.

Legal Professional Privilege (Sch 1 Cl 5)

54.The general provisions relating to the existence of legal professional privilege are as follows. The material must be:

◦In the context of a client and lawyer relationship,

◦That there is a confidential nature to the communication or the document(s),

◦The communication or the documents was brought into existence for the dominant purpose of either:

(a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services,

(b) for use in either existing of proposed / contemplated proceedings / litigation.

55.These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW).

19. In my view after examining the withheld material, it is clear that the identified documents constitute material that would fall within the scope (on any objective analysis), of material referred to in paragraph 16 above (as in the case of Hutchinson). In addition the identified material does appear to be in scope of the GIPA Act request of the applicant.

20. Whilst the material is clearly within the scope of the GIPA Act request, and thereby of possible interest to the applicant, and (given the nature of the relationship between the applicant and the material sought) possibly of high relevance to the applicant, because the material falls within the scope of Schedule 1, that is not determinative of release. Personal factors of the application do not come into any assessment of this material (as per section 55 of the GIPA Act) as the material is conclusively presumed to have an overriding public interest against disclosure under the GIPA Act.

21. As the matter has been closely examined in the confidential hearing, and the respondent was at times represented by two capable legal practitioners, I see no need to provide confidential written reasons as to why the material should be withheld and that aspect of the respondent’s decision be upheld. This situation would not assist the applicant as they were not privy to the confidential session or in addition would not be privy to any confidential reasons for decision.

22. The provisions of section 107 prevent disclosure of both the consideration of the material and any details of the reasons which would identify the material. The section provides:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

23. Having carefully considered the Schedule 1 material to which these written reasons relate, and noting that the majority of the material sought has been disclosed, as well as a further significant portion of the originally claimed Schedule 1 material, in my view the conformity of the data to the words of the clauses of the schedule are self- evident when one has regard to the data.

24. I note that the reasons for decision in the separate case of Bayne v Department of Environment and Heritage [2016] NSWCATAD 52 dealt with one suite of data (Legal Professional Privilege). In that matter however minimal aspects of that data (Schedule 1 material) had been released prior to adjudication by the Tribunal, but other information had been released relating to whether there were significant public interest reasons against disclosure.

25. In the current matter, a large volume of data has now been released, and in my view the withheld data (as at 23 February 2016) is properly characterised as information falling within the provisions of Schedule 1.

26. I note that all other aspects of these three proceedings have now been resolved as between the parties. (See paragraph 5 above).

Conclusion

27. It therefore follows, that the correct and preferable decision is to uphold the decision of the respondent as at the time of compliance with the Tribunal’s orders following the hearing on 16 February 2016.

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: 13 April 2016