Davies v Department of Enterprise Investment and Trade

[2023] NSWCATAD 72

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Davies v Department of Enterprise Investment and Trade [2023] NSWCATAD 72

Hearing dates:

10 and 24 November 2022

Date of orders:

27 March 2023

Decision date:

27 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

1. The decision of 9 August 2022 concerning Documents 1, 2, 3 and 4 is affirmed.

2. List the matter for directions on 18 April 2023 to set a timetable for further evidence, submissions and a hearing date to determine all outstanding issues.

3. The publication and disclosure of evidence read or tendered by the Respondents on a confidential basis is restricted to the Respondents and their legal representatives only, pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW).

4. Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW), the transcript and recording of that part of the hearing in these proceedings that took place in the absence of the Applicant and the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

Catchwords:

ADMINISTRATIVE LAW — Government Information (Public Access) — access to information — conclusive presumption that there is an overriding public interest against disclosure — cabinet information.

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Administrative Decisions Review Act 1997 (NSW)

Cases Cited:

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

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

D'Adam v New South Wales Treasury [2015] NSWCATAP 61

Mookhey v Infrastructure NSW [2017] NSWCATAD 345

Searle v Transport for NSW [2017] NSWCATAD 256

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Re Aldred and Department of Foreign Affairs and Trade [1990] AATA 20; (1990) 20 ALD 264

National Parks Assn of New South Wales Inc v Department of Lands [2005] NSWADT 124

Category:

Principal judgment

Parties:

Anne Davies (Applicant)
Department of Enterprise Investment and Trade (First Respondent)
Premier of New South Wales (Second Respondent)

Representation:

Counsel:
Applicant (self-represented)
R McEwan (First and Second Respondents)

Solicitors:
H Bennett (Applicant)
Crown Solicitor (First and Second Respondents)

File Number(s):

2022/00061741

Publication restriction:

Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

REASONS FOR DECISION

Introduction

1. The Applicant, Ms Davies, is a journalist who reports for the Guardian Australia. In the present application, Ms Davies seeks access to documents from the Department of Enterprise, Investment and Trade (DEIT) under a request made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The DEIT is the First Respondent in this application.

2. The Premier of New South Wales is a party to any proceedings on an application concerning an administrative decision made under GIPA Act involving a conclusion that there is an overriding public interest against disclosure because the information sought is considered Cabinet information; GIPA Act, s 106(5). Accordingly, the Premier of New South Wales appeared as the Second Respondent and had the same legal representation as the DEIT. In these reasons, I refer to the DEIT and the Premier of NSW, together, as the Respondents.

3. Ms Davies originally made a request under the GIPA Act to the Department of Premier and Cabinet (DPC) on 5 May 2021. Her request was in the following terms:

I write to request a copy of the McNaughton report on faster rail services for NSW.

I also request any responses from the NSW and Federal government about its findings and recommendations, including advice from the Premier’s department, Infrastructure NSW, Transport for NSW and the federal department of infrastructure or Infrastructure Australia.

4. The Respondents resist this request because they say that the four documents ultimately identified by the DEIT in response contain Cabinet information as referred to in the GIPA Act, Sch 1, cl 2.

Background

5. The matter has a complex procedural background that is relevant to the issues to be determined and explains, in part, why a GIPA Act request originally made on 5 May 2021 was the subject of a reviewable decision on 9 August 2022 and is now being determined by the Tribunal in 2023.

6. On 2 June 2021, the DPC decided it did not hold any information answering Ms Davies’ request. The DPC told Ms Davies that while there was a document entitled “Fast Rail Strategy – Connecting people, growing regions” (Fast Rail Strategy), it did not come within the terms of Ms Davies’ request since the Fast Rail Strategy was neither a “report” nor “the McNaughton report”. There was no consideration or search undertaken by the DPC regarding the second limb of Ms Davies’ request in which she sought responses from State and federal government agencies to the findings and recommendations in the report. Presumably, this, too, was based on the DPC’s interpretation of the word “report” in Ms Davies’ request.

7. Ms Davies sought an external review of the DPC decision by the Information Commissioner. The Information Commissioner determined that the DPC’s 2 June 2021 decision was not justified. As a result, by 29 October 2021, the DPC reconsidered Ms Davies’ request and determined that the Fast Rail Strategy did come within the terms of the request but told her that the Fast Rail Strategy was not to be released on the basis that it was Cabinet information as defined by the GIPA Act, Sch 1, cl 2. Once again, no consideration or search was undertaken regarding the second limb of Ms Davies’ request.

8. Ms Davies again applied to the Information Commissioner and sought a review of the original decision under the GIPA Act, s 89. On 11 February 2022, the Information Commissioner advised Ms Davies of the outcome of her review. In summary, the Commissioner determined that the DPC’s decision of 29 October 2021 not to release the Fast Rail Strategy was justified because the material identified contained Cabinet information. The Information Commissioner made no recommendation to the agency arising from her review.

9. On 29 March 2022, having received the Information Commissioner’s review, Ms Davies commenced the current proceedings in the Tribunal, challenging the DPC decision of 29 October 2021. The Tribunal ordered that the DPC reconsider Ms Davies’ request and required the DPC to advise Ms Davies of the outcome of that reconsideration by no later than 9 August 2022.

10. The DPC then transferred further consideration of the request to the DEIT. Transfers between agencies are permitted in certain circumstances as set out in the GIPA Act, s 45.

11. On 9 August 2022, the DEIT advised Ms Davies of the outcome of the reconsideration of her request. In short, the DEIT determined that the Fast Rail Strategy and three further documents answered the request, but none were to be released to Ms Davies. In setting out its reasons for so deciding, the DEIT:

1. Maintained that no “report” was prepared by or with Professor McNaughton since the Fast Rail Strategy did not contain findings and recommendations. Instead, Professor McNaughton and a whole-of-government expert panel “developed a strategy over time as part of an ongoing iterative process with many inputs from Ministers, community stakeholders and government department. The government strategy outlined a course of proposed action for adoption as government policy.”

2. Nonetheless, the DEIT interpreted Ms Davies’ request as being a request for a copy of the Fast Rail Strategy and, for the first time, addressed the second limb of Ms Davies’ request as being “a request for access to the NSW and Federal Government’s responses to the Fast Rail Strategy in its draft forms”. This interpretation was said to cover any government responses to the Fast Rail Strategy while it was being presented to the NSW Cabinet in 2021.

3. On the interpretation given to Ms Davies’ request by the DEIT, documents containing material going into the development or formulation of the Fast Rail Strategy would be outside the scope of the request. On a fair reading of Ms Davies’ request, she seeks a copy of the Fast Rail Strategy and responses to it, not inputs into creating that document.

4. The DEIT asserted that each of the four documents contained “Cabinet information”, as referred to in the GIPA Act, Sch 1, cl 2(1).

5. According to the non-confidential submissions of the Respondents, those four documents may be described as:

1. The Fast Rail Strategy (Document 1);

2. A document described as “Stakeholder Report – Attachment to the final version of the Fast Rail Cabinet Submission in eCabinet” (Document 2);

3. A document described as “Draft Consultation Summary Table – Attachment to the final version of the Fast Rail Cabinet Submission in eCabinet” (Document 3); and

4. A document containing Responses to the draft and final versions of the Fast Rail Cabinet submission in eCabinet” (Document 4).

12. The DEIT identified that Document 1 contained Cabinet information as described in cl 2(1)(b), cl 2(1)(c) and cl 2(1)(e) and that the three additional documents contained Cabinet information as described in cl 2(1)(e).

13. In submissions before the Tribunal, the Respondents now say Document 2 and Document 3 also contain Cabinet information of the kind described in cl 2(1)(b) in addition to cl 2(1)(e) and that Document 4 contains Cabinet information of the kind described in cl 2(1)(f), being extracts from Document 3.

14. In her opening submissions, Ms Davies addressed the Tribunal on the contextual background to her request. She informed the Tribunal that in December 2018, four months before a State election in NSW, the then Premier issued a media release announcing that the NSW Government would start work on a fast rail network in its next term (being the current term that will shortly expire). A copy of the media release was later tendered into evidence as an annexure to Ms Davies’ statement. The media release advised of the appointment of Professor Andrew McNaughton, a UK-based expert in high-speed rail, to advise the Premier on routes, train speeds and stations.

15. According to the Respondents’ evidence, Professor McNaughton headed an expert panel comprising staff from various relevant departments, including Transport for NSW, the Department of Planning, the DEIT and the Treasury.

16. Ms Davies submitted that a report prepared by Professor McNaughton and any comments or reactions to it had the potential for a transformative effect on development, including regional development, substantive changes to the quality of rail lines around the state and redistribution of services across the State in circumstances where members of parliament represent geographically drawn electorates.

17. Ms Davies submitted that a fast rail link between Sydney and Canberra was estimated to cost between $90 and $100 billion and that if the fast rail projects considered by Professor McNaughton included such a link, this level of expenditure would likely be the most extensive expansion of rail services in a century.

18. By early 2021, there had been no release of any report, account or recommendations arising from Professor McNaughton’s work. Ms Davies had been waiting for the release of a report (or similar). Her interest in the progress and status of the report was piqued by the lapse of time, changes in government at a federal level, her awareness that Professor McNaughton and the expert panel had held public and stakeholder meetings and the fact that, in November 2020, a member of the Legislative Council called for papers and received, among other things, a public schedule of papers that suggested a large amount of material existed.

19. In her submissions, Ms Davies said that Professor McNaughton’s report appeared to have been leaked to other media outlets. The Tribunal marked for identification an article dated 11 May 2022 from the Sydney Morning Herald, which suggested that journalists with that organisation had received a leaked Cabinet report on fast rail that Ms Davies had provided as the basis of her submission. In answer, the Respondents tendered a statement from one witness that asserted the material referred to by the Sydney Morning Herald was a reference to a different document, the Future Transport Strategy, which is less detailed than the Fast Rail Strategy and that this document had been subsequently released in September 2022.

20. The thrust of Ms Davies’ submissions on context was nonetheless clear; the work of Professor McNaughton has the potential to set a course for significant government expenditure across the State and informed public debate, assisted by a responsible journalistic process, of the government’s plans was a matter of civic necessity. Ms Davies emphasised the importance of an independent report being released “as is” to the public to allow proper scrutiny of the "inevitable glossy pamphlet” she predicted would shortly issue.

Contentions

21. Ms Davies’ application to the Tribunal, filed on 3 March 2022, refers to the decision of the DPC dated 29 October 2021 in which only Document 1 had been identified as coming within the scope of her GIPA Act request. Her application stated two grounds that, in summary, were;

1. Firstly, the DPC did not have reasonable grounds to claim that the information contained in the document (noting only Document 1 had been identified as coming within the scope of Ms Davies’ request) contained Cabinet information; and

2. Secondly, the DPC’s decision that Document 1 was exempt because it contained Cabinet information was not the correct or preferable decision.

22. Ms Davies’ submissions and evidence were directed to two principal contentions;

1. First, she contended that the Respondents had not identified all documents within the scope of her request (Adequacy of Search Contention); and

2. Secondly, the Respondents have not established a reasonable basis for their claim that the material in the four documents contained Cabinet information (s 106 Contention).

23. The Respondents say, and I accept, that the hearing of this matter was set down on the basis that only the s 106 Contention was to be determined.

24. The determination provided in these reasons concerns the s 106 Contention only. This is for the following reasons:

1. On 11 April 2022, the application was listed for directions arising from which the Tribunal directed the DPC (who was, at the time, the sole respondent) in the following terms:

1.    Department of Premier and Cabinet is to give to the Tribunal and Anne Davies the following material in support of its contention that there are reasonable grounds for its claim that there is an overriding public interest against disclosure as the information sought by the applicant is Cabinet information (GIPA Act, s 106(1)); evidence including statements, documents and submissions on or before 6 May 2022.

2. Ms Davies was given the following corresponding direction:

3.   Anne Davies is to give to the Tribunal and the Department of Premier and Cabinet the following material in response to the above mentioned contention of the respondent; evidence including statements, documents and submissions on or before 3 June 2022.

3. The Respondents have consistently submitted that the s 106 Contention is the only matter to be determined and the only issue in respect of which they have prepared submissions and evidence.

4. Directions were made subsequently by the Tribunal, which could be interpreted to suggest that the hearing in November 2022 was directed to the determination of both the Adequacy of Search Contention and the s 106 Contention.

1. On 28 June 2022, when the matter was listed for further directions, the Tribunal noted:

The Tribunal notes that an issue as to the adequacy of search has been raised. The reconsideration of this remittal will require transfer to another agency. On the next occasion if the matter is to proceed directions will be made for any further evidence and submissions, and to list the matter for hearing.

2. Further directions were made on 16 August 2022 when the matter was again listed before the Tribunal. At that time, the Tribunal directed the parties to exchange “further” evidence and submissions before the hearing date of 3 November 2022.

5. Regarding the above matters, it is not entirely clear to me that, by the directions hearing on 16 August 2022, the Tribunal and the Parties were preparing for a hearing regarding the s 106 Contention only. By that date, the DEIT had indicated that further documents had come within the scope of Ms Davies’ request being Documents 2, 3, and 4. However, the Respondents point to the fact that had it been intended that the hearing was to determine both the Adequacy of Search Contention and the s 106 Contention, then it would have been allocated for more than half a day or two hours. There is some force in that submission. Had both contentions been intended to be heard, the matter would have required a full day of hearing, including a private session.

6. The Respondents’ further written submissions dated 27 September 2022 refer to the “present question” as the s 106 Contention. Neither those submissions nor the further evidence they served to address the Adequacy of Search Contention. The Respondents proceeded at all times on the basis that the s 106 Contention only was to be determined.

25. Having regard to the above matters, I have concluded that it would be unfair for the Tribunal to proceed to determine the Adequacy of Search Contention as well as the s 106 Contention. The matter will be brought back for directions to prepare a timetable, including a hearing date to determine the Adequacy of Search Contention.

Issue

26. Accordingly, there is a single question to be determined at this stage: Are there reasonable grounds for the Respondents’ claim that the four documents identified contain Cabinet or Executive Council information as described in the GIPA Act, Sch 1?

27. After considering the relevant facts and applicable law, the answer to that question is that the Respondents have established there are reasonable grounds for their claim that the information is Cabinet information. Consequently, it is conclusively presumed that there is an overriding public interest against the disclosure of the information requested by Ms Davies regarding those documents.

28. The resolution of the s 106 Contention in favour of the Respondents does not conclude the matter. As noted above, the Adequacy of Search Contention remains outstanding and requires determination.

Legal Context

Jurisdiction and Onus

29. The Tribunal has jurisdiction to review the decision to refuse access to identified documents. The relevant decision is dated 9 August 2022. That jurisdiction arises by operation of the GIPA Act, ss 80 and 100; the Administrative Decisions Review Act 1997 (NSW), s 9 and the Civil and Administrative Tribunal Act 2013 (NSW), ss 28 and 30.

30. Generally, in administrative reviews concerning the GIPA Act, the role of the Tribunal in hearing the application for review is to decide the correct and preferable decision having regard to the evidentiary material before it, including relevant factual material and the applicable law: Administrative Decisions Review Act, s 63(1). However, that is not the case where a respondent asserts the material contained Cabinet information. The GIPA Act, s 106, expressly limits the Tribunal’s power to determine the matter. It regulates the process that the Tribunal must follow in cases where access to information has been refused because the information is Cabinet Information. The section provides:

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.

31. The procedure set out in the GIPA Act, s 106 has been discussed in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]-[12] and subsequently, for example, in Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101.

32. The Tribunal at first instance in D'Adam v New South Wales Treasury [2014] NSWCATAD 68, at [45]-[46], 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".

33. As to onus, the Respondents have the burden of establishing that the decision to refuse access to Ms Davies is justified; GIPA Act, s 105. That includes a refusal because the documents identified in the request contain Cabinet information.

Substantive Legislative Provisions

34. There exists a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure; GIPA Act, s 5.

35. A person who makes a valid application for access to government information has a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure; GIPA Act, s 9(1).

36. The presumption in GIPA Act, s 5 and the right created in GIPA Act, s 9 give effect to the object stated in GIPA Act, s 3(1)(c), which provides that access to government information should only be restricted where there is an overriding public interest against disclosure. That object is predicated upon the stated desire to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective.

37. GIPA Act, s 14 sets out the considerations against disclosure. The only material to which there is a conclusive overriding public interest against disclosure is described in the GIPA Act, Sch 1. The Respondents rely on the conclusive provisions concerning Cabinet information described in the GIPA Act, Sch 1. Absent a conclusive presumption, the finding of an “overriding public interest against disclosure” would require a balancing between considerations in favour and against disclosure; GIPA Act, s 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47] and considerations of the matters set out in the GIPA Act, s 15.

Cabinet information

38. Cabinet information is described in the GIPA Act, Sch 1, cl 2(1) as follows:

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).

39. Information excluded from the definition is described in the GIPA Act, Sch 1, cl 2(2) – 2(4) as follows:

(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 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.

40. The Tribunal determines the reasonableness of the Respondents’ assertion on the date when the reviewable decision was made. In this case, the reviewable decision was made on 9 August 2022. This approach was adopted by the Tribunal previously in other matters considering the Cabinet information exclusion; Searle v Transport for NSW [2017] NSWCATAD 256 at [24], and subsequently in Mookhey v Infrastructure NSW [2017] NSWCATAD 345 at [19].

41. With regard to Document 1, being the Fast Rail Strategy, the Respondents rely principally upon GIPA Act, Sch 1, cl 2(1)(b) and alternatively on cl 2(1)(c) and cl 2(1)(e).

42. GIPA Act, Sch 1, cl 2(1)(b) and (c) include the term “dominant purpose”. Clause 2(1)(b) refers to a document being Cabinet information if it was prepared for the dominant purpose of it being submitted to Cabinet for Cabinet’s consideration. It is not material whether the document has been submitted to Cabinet. The purpose is the “dominant purpose” if it is causative in the sense that, but for the presence of that purpose, the information would not have been prepared; Searle at [35].

43. The time at which the dominant purpose of the document is to be determined is when the document is brought into existence; Re Aldred and Department of Foreign Affairs and Trade [1990] AATA 20 at [63]; (1990) 20 ALD 264 at 265-266, per Hartigan J.

44. A document may have multiple purposes, including submission to the Cabinet for its consideration; Mookhey [23]-[43]. However, it is not necessarily sufficient that the document has been prepared as the basis for a submission to Cabinet; National Parks Assn of New South Wales Inc v Department of Lands [2005] NSWADT 124 at [34]. Nor is merely attaching a document to a formal Cabinet submission sufficient; GIPA Act, Sch 1, cl 2(3).

Material Before the Tribunal

The Applicant’s Material

45. Ms Davies provided a statement prepared by her in June 2022 in these proceedings. Ms Davies’ statement and its annexures were tendered as evidence at the hearing.

46. Additionally, Ms Davies presented several further documents, including news articles relevant to the context of her request and the reasonableness of the Respondents’ claim that the four documents contained Cabinet information. Because that material was not directly relevant to the issues to be determined by the Tribunal at the hearing, it was not tendered into evidence but was marked for identification.

47. In addition to her oral submissions, Ms Davies, provided four sets of written submissions. The first two sets of written submissions addressed why her contentions were correct. The third and fourth sets of written submissions addressed the issue of why the absence of Ms Braid, the central witness for the Respondents, who became unavailable just before the first hearing date, should mean that her evidence must be disregarded. I have taken account of those submissions and will refer to them as necessary. As noted above, Ms Davies has a legally enforceable right to access the documents she has requested unless there is an overriding interest against disclosure.

The Respondents’ Material

48. The Respondents bear the onus of demonstrating that there are reasonable grounds for the claim that the four documents contain Cabinet information; GIPA Act, s 105. In that regard, the Respondents tendered as evidence the statements of three witnesses; Ms Braid, Mr Young and Mr Nelmes.

Ms Braid

49. Ms Braid is a former Deputy Secretary and Chief Operating Officer for the DEIT, the Chief Operating Officer of Investment NSW. Ms Braid was also Project Director for Fast Rail between July 2019 and March 2020. Ms Braid’s statement was filed and served in May 2022. It is clear from her statement that Ms Braid had direct knowledge of the creation and development of Document 1.

50. Shortly before the first day of the hearing, Ms Braid became unavailable to appear to give evidence and be cross-examined. Initially, the Respondents applied for Ms Braid to give evidence by audio-visual link; however, at the first session of the hearing, the Tribunal was informed that Ms Braid was not available to give evidence that day. As a result, the matter was part-heard and the subject of a further directions hearing to allow time for the extent of Ms Braid’s unavailability to be determined. At the directions hearing, the Tribunal was informed that Ms Braid was no longer available at all. The Respondents tendered Ms Braid’s May 2022 statement on the resumed hearing. The Tribunal also received submissions from both parties on whether her evidence should be rejected because she was no longer available for cross-examination.

51. Ms Davies submitted that Ms Braid was central to the question before the Tribunal as to whether there was a reasonable basis to claim that Documents 1, 2, 3 and 4 contained Cabinet information. Ms Davies pointed out that the reason for Ms Braid’s unavailability was not properly explained and that her ability to demonstrate that the Respondents did not have reasonable grounds to assert Cabinet information was severely limited by being unable to cross-examine Ms Braid.

52. I accept Ms Davies’ propositions and acknowledge that it is frustrating when a key witness becomes unavailable. However, the fact that a witness becomes unavailable suddenly and/or without a clear explanation is not uncommon, and the Tribunal, in exercising its administrative review jurisdiction, must deal with it as best it can, affording fairness to the parties before it.

53. I reject the submission made on behalf of the Respondents that Ms Davies should have requested the Tribunal to issue a summons requiring Ms Braid to appear; Ms Braid was the Respondents’ witness. The Respondents bear the onus in this application. It was Ms Braid’s evidence, arising from her direct involvement with the preparation of the Fast Rail Strategy and consultation with stakeholders as well as her familiarity and involvement in the presentation of the Fast Rail Strategy to Cabinet, that made her a crucial witness to discharge the Respondents’ onus. Unless she intended to call Ms Braid in her own case, it was not for Ms Davies to take any step to ensure Ms Braid attended.

54. The Tribunal is not bound by the strict rules of evidence. Its power to inquire and inform itself on any matter is subject only to the rules of natural justice; Civil and Administrative Tribunal Act, s 38(2). Natural justice is a term that is interchangeable with procedural fairness. In circumstances where a witness is not made available for cross-examination – for whatever reason – there will be a lack of procedural fairness against the opposing party since they will lose the opportunity to interrogate and test the evidence of that witness. In this case, Ms Davies has lost the opportunity to cross-examine and test Ms Braid’s evidence. However, Ms Braid’s statement sets out several facts that are not the subject of particular controversy, and Ms Davies did not adduce evidence to contradict Mr Braid’s evidence. Further, much of the controversial material in her statement is subject to orders for non-publication and confidentiality, which prevent Ms Davies from seeing or testing that evidence in any event. The Tribunal has not had the opportunity to question Ms Braid and test her evidence; however, that matter can be dealt with by attributing less weight than might otherwise be given to her statement. Accordingly, I decline Ms Davies’ application to reject Ms Braid’s statement. However, as the Tribunal could not test her evidence, I do not attribute substantial weight to those matters uncorroborated by other witnesses of the Respondent who were available for cross-examination.

55. The statement of Ms Braid annexed various relevant documents, including the NSW Cabinet Manual and the “Premier’s Memorandum: M2006-08 Maintaining Confidentiality of Cabinet Documents and Other Cabinet Conventions.” The NSW Cabinet Manual outlines that; the Cabinet observes convention, all Ministers are members, and the Cabinet should determine all significant matters affecting the government, as a whole, including new policy proposals and matters that might be contentious and/or impact substantial parts of the community.

56. Ms Braid’s statement begins by setting out the uncontested background concerning the appointment of Professor McNaughton and the preparation and development of the Fast Rail Strategy, then outlines her first-hand involvement in having the Fast Rail Strategy submitted to Cabinet.

57. [NOT FOR PUBLICATION].

58. [NOT FOR PUBLICATION].

59. [NOT FOR PUBLICATION].

Mr Young

60. Mr Young, the Director, Government Relations at the DEIT and previously the Director, Cabinet Services at Transport for NSW, provided a statement. Mr Young was not required for cross-examination, and I have accepted his written statement as evidence subject to weight. I note Ms Davies’ submission that the unredacted portion of Mr Young’s evidence describes the usual process for preparing material to go to Cabinet and that without access to the confidential parts of his statement, cross-examination by Ms Davies would not assist the determination of the question.

61. The non-confidential part of Mr Young’s statement describes the document management process for documents submitted to Cabinet in detail. I note, in passing, that not all documents submitted to Cabinet will contain Cabinet information.

62. [NOT FOR PUBLICATION].

63. [NOT FOR PUBLICATION].

64. [NOT FOR PUBLICATION].

65. [NOT FOR PUBLICATION].

Mr Nelmes

66. Mr Nelmes, the acting Program Director, Fast Rail, Transport for NSW, provided a statement and was cross-examined by Ms Davies.

67. In his statement, Mr Nelmes says that he was involved in developing the Fast Rail Strategy and the Cabinet Submission to which the Fast Rail Strategy was attached that ultimately was presented to the Cabinet.

68. Mr Nelmes states that information in Ms Braid’s statement remains correct; in particular, the Fast Rail Strategy was not released to the public when the Tribunal heard the matter.

69. Mr Nelmes also commented on the media article that Ms Davies had presented as suggesting that the Fast Rail Strategy had been leaked to a journalist at the Sydney Morning Herald. Mr Nelmes stated that the document quoted by that media outlet was a different, less detailed document called the Future Transport Strategy that had not been released until September 2022 – six months after that article was published.

70. I accept Mr Nelmes’ evidence on this point, given his unchallenged familiarity with the development of the Fast Strategy between late 2018 and early 2020, which would mean he could distinguish between the Fast Strategy and some other document.

71. In cross-examination, Mr Nelmes informed the Tribunal, among other matters, that:

1. He attended meetings but was not formally a member of the whole-of-government expert panel;

2. He had some interactions with Professor McNaughton, the first time being in early 2019.

3. Professor McNaughton’s appointment or engagement had been arranged by DPC, but Transport for NSW was leading the day-to-day development, including providing modelling inputs and advice to be presented to Professor McNaughton, which he then reviewed as part of his role.

4. Professor McNaughton made about eight visits of about ten days’ duration to NSW from the United Kingdom. During those visits, Professor McNaughton attended the whole-of-government expert panel meetings and chaired stakeholder engagement events with various public stakeholders such as local councils, regional organisations, universities and business chambers. The stakeholder events involved Professor McNaughton leading the conversation and did not include the use of visual aids.

Consideration

Document 1

The Fast Rail Strategy

72. Document 1 is the Fast Rail Strategy. I accept Ms Braid’s evidence, corroborated by Mr Young, that Document 1 was presented to Cabinet. I further accept Ms Braid’s evidence, corroborated by the press release dated 4 December 2018 that Ms Davies annexed to her statement, concerning the nature of the appointment of Professor McNaughton that Document 1 was the principal document reporting to Cabinet that captured the work that Professor McNaughton and the expert panel were appointed to undertake.

73. On the basis of the evidence outlined above, I do not accept Ms Davies’ submission that, when it was prepared, it was not contemplated that Document 1 would be submitted to Cabinet. Nor do I accept, again having regard to the totality of the evidence, Ms Davies’ submission that the preparation of Document 1 was consistent with it being one of several inputs into overall policy development or as a framework for further enquiries to be carried out.

74. To the contrary, I am satisfied that the work undertaken by Professor McNaughton was directed towards informing the Premier and the Cabinet on a major policy for the development and implementation of Fast Rail in New South Wales. This is in some respects supported by Ms Davies’ opening oral submissions, in which she outlined the potential political and economic importance of the work undertaken by Professor McNaughton. Accordingly, I conclude that reports or documents forthcoming from that work would be, in the first instance and predominantly, directed to informing the Cabinet on a major policy issue.

72. Equally, I am satisfied having regard to the following matters:

1. the circumstances in which Professor McNaughton was appointed,

2. the subject matter that Professor McNaughton was engaged to investigate,

3. the detail provided in Ms Braid’s statement concerning the content of the Fast Rail Strategy;

4. the fact that Document 1 was presented to Cabinet in its entirety,

5. the matters set out in paragraphs 57, 58 and 59 and paragraphs 62, 63, 64 and 65 above, which are subject to non-publication orders,

that the Respondents have established that there are reasonable grounds for the claim that Document 1 contains Cabinet Information.

76. The present case may be distinguished on its facts from the Tribunal’s findings in Mookhey at [23]-[43]. In that case, the Tribunal decided that the subject documents had come into being for several purposes, including as a submission to Cabinet, but that submission to Cabinet was not the dominant purpose. The documents in Mookhey were business cases submitted to Infrastructure NSW as part of a process to obtain approval for funding derived from a particular fund. The business cases, while essential to obtaining Cabinet approval, also had purposes beyond establishing a case for funding and the submission of the business cases or extracts of them to Cabinet was not capable, alone, of establishing a dominant purpose as required under cl 2(1)(b). The evidentiary problems featured in Mookhey are not present in these proceedings, nor is the Fast Rail Strategy a business case addressing specific funding issues. According to the evidence tendered by the Respondents, which was echoed to a large extent by Ms Davies’ evidence and submissions, the Fast Rail Strategy is a major policy document of the kind which might be expected to, and indeed was, presented to Cabinet.

77. [NOT FOR PUBLICATION].

78. Based on the evidence of each of the Respondents’ witnesses, I have concluded that the Fast Rail Strategy was not widely distributed and was treated by the State government as a document to be presented for Cabinet’s consideration using the eCabinet document management system.

79. Accordingly, I am satisfied that the Respondents have established reasonable grounds for the claim that Document 1 was prepared for the dominant purpose of being submitted to Cabinet for Cabinet’s consideration and, as such, it may be conclusively presumed that it is not in the public interest for Document 1 to be released; GIPA Act, Sch 1, cl 2(1)(b).

Documents 2 – 4

Stakeholder Report

Draft Consultation Summary Table

Responses to the draft and final versions of the Fast Rail Cabinet Submission in eCabinet

80. Documents 2, 3 and 4 record stakeholder and other comments and responses to the Fast Rail Strategy.

81. In respect of Document 2, Ms Davies submits that stakeholder documents are “generally prepared at a much earlier stage in the policy-making process as one input which then informs the Cabinet submission”. Similarly, in respect of Document 3, Ms Davies submits that “if it was prepared months before as part of another process, it clearly does not attract the exemption”. In respect of Document 4, Ms Davies also submits that the date of creation is relevant, though she concedes that “if it was created as a compilation of departmental responses to a Cabinet submission in the days and weeks before Cabinet considered it, then … cl 2(1)(e) may apply”.

82. There are two elements in Ms Davies’ submissions concerning Documents 2, 3 and 4; one is temporal, and the other is causative. I do not accept that the time when a document was created necessarily excludes the document from containing Cabinet information, and Ms Davies cites no authority for that submission. As to whether the document was prepared as part of another process, that speaks to the question of the dominant purpose of the document, which is relevant to the present application. The time at which the dominant purpose of a document is to be determined is at the time of its creation, as I note in paragraph 43 above. As an evidentiary matter, the time when a document was created relative to its being put before Cabinet may have some bearing on that question, but it is not determinative of the issue.

83. [NOT FOR PUBLICATION].

84. [NOT FOR PUBLICATION].

85. [NOT FOR PUBLICATION].

86. Each of Documents 2, 3 and 4 were located by the DEIT in the eCabinet document management system, and according to Mr Nelmes’ evidence, that is the only place the DEIT had access to them.

87. Accordingly, I am satisfied that the Respondents have established reasonable grounds for their claim that Documents 2, 3 and 4 were prepared for the dominant purpose of being submitted to Cabinet for Cabinet’s consideration and, as such, it may be conclusively presumed that it is not in the public interest for the Fast Rail Strategy to be released; GIPA Act, Sch 1, cl 2(1)(b).

88. Further, I am satisfied having regard to the confidential evidence before the Tribunal concerning Documents 2, 3 and 4 that those documents are likely to reveal the position that a particular Ministers took or were recommended to take in Cabinet and, as such, those documents are subject to a further basis upon which it may be conclusively presumed that it is not in the public interest for those documents to be released; GIPA Act, Sch 1, cl 2(1)(e).

Conclusion

89. The Respondents have established reasonable grounds for their claim that Documents 1, 2, 3, and 4 contain Cabinet information as referred to in GIPA Act, Sch 1, cl 2. It is, therefore, conclusively presumed that there is an overriding interest against the disclosure of those documents.

Orders

90. I make the following orders:

1. The decision of 9 August 2022 concerning Documents 1, 2, 3 and 4 is affirmed.

2. List the matter for directions on 18 April 2023 to set a timetable for further evidence, submissions and a hearing date to determine all outstanding issues.

3. The publication and disclosure of evidence read or tendered by the Respondents on a confidential basis is restricted to the Respondents and their legal representatives only, pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW).

4. Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW), the transcript and recording of that part of the hearing in these proceedings that took place in the absence of the Applicant and the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released 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: 27 March 2023