Fiddletown Investments Limited v Department of Premier and Cabinet; Fiddletown Investments Limited v NSW Treasury

[2021] NSWCATAD 17

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

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

Hearing dates:

25 May 2020; last submissions received 11 June 2020

Date of orders:

02 February 2021

Decision date:

02 February 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Goodman SC, Senior Member

Decision:

(1) In proceeding 2020/00023608 (Fiddletown Investments Limited v Department of Premier and Cabinet & Premier of New South Wales):

(a) the decision of the Department of Premier and Cabinet (DPC) dated 12 November 2019 is varied such that documents 5, 6, 8 and 16 are released to the Applicant, subject to redaction;

(b) the implied decision of the DPC that it does not hold any further information is remitted to the DPC pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration of that decision and:

(i) DPC is to affirm the decision, vary the decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the Administrative Decisions Review Act 1997, and to provide reasons, both to the applicants and the Tribunal, within 28 days of the date of these Reasons;

(ii) the applicant is to inform the Tribunal and DPC whether it wishes to proceed with, or withdraw, the application for review, within 42 days of the date of these Reasons;

(iii) if the Applicant decides to proceed with its application for review, it is to request the Registry to relist the matter for directions when it informs the Tribunal of its decision in accordance with Order (1)(d) above;

(c) the decision of DPC is otherwise affirmed in relation to Documents 1-4, 7, 9-15 and 17-20;

(2) In proceeding 2020/00032207 (Fiddletown Investments Limited v New South Wales Treasury & Premier of New South Wales):

(a) the decision of NSW Treasury dated 22 November 2019 is varied to the following effect:

(i) Document 4A, other than pages 32 – 38, is released to the Applicant;

(ii) Documents 4B, 4C, 14B and 14C are released to the Applicant;

(iii) Documents 14A and 14D are withheld on the basis that there are reasonable grounds for concluding that there is an overriding public interest against disclosure of the information because it is Cabinet information;

(b) the decision of NSW Treasury is otherwise affirmed in respect of Documents 2, 3A, 3D, 4A, 7A, 7B, 10, 13, 14A, 14D and 15.

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure – Cabinet information

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Lake Macquarie Smelter Site (Perpetual Care of Land) Act 2019

Cases Cited:

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

Commissioner of Police v Danis [2017] NSWCATAP 7

D’Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61

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

Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18

Infrastructure NSW and Department of the Premier and Cabinet v Mookhey [2018] NSWCATAP 213

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

Manning v Bathurst Regional Council [2018] NSWCATAD 132

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53

Meacham v Commissioner of Police [2020] NSWCATAP 107

Mookhey v Infrastructure NSW [2017] NSWCATAD 345

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Taylor v Office of Destination NSW [2018] NSWCATAD 195

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

Transport for NSW v Searle [2018] NSWCATAP 93

University of New South Wales v McGuirk [2006] NSWSC 1362

Texts Cited:

Nil

Category:

Principal judgment

Parties:

2020/00023608
Fiddletown Investments Limited (Applicant)
Department of Premier and Cabinet (Respondent)

2020/00032207
Fiddletown Investments Limited (Applicant)
NSW Treasury (Respondent)

Representation:

Counsel:
D Forrester (Applicant)
O Jones (Respondents)

Solicitors:
Clayton Utz (Applicant)
Crown Solicitor (Respondents)

File Number(s):

2020/00023608; 2020/00032207

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013,the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondents, is prohibited.

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review by the Tribunal of decisions of the Department of Premier and Cabinet (DPC) dated 12 November 2019 (DPC Decision) and New South Wales Treasury (Treasury) dated 22 November 2019 (Treasury Decision). Each Decision concerned an application by the applicant for access to government information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. Each Decision included a refusal to provide certain documents on the basis that those documents contain “Cabinet information” in respect of which it is claimed there is a conclusive overriding public interest against disclosure, by reason of the operation of s 14(1) and cl 2 of Sch 1 of the GIPA Act. For the reasons set out below, those parts of each Decision which involved Cabinet information claims are affirmed.

3. The Treasury Decision also included a refusal to provide access to a number of documents on the basis that there is an overriding public interest against disclosure of the information contained therein by reason of the operation of s 14(1) of the GIPA Act and cll 1(f) and 4(d) of the table to that section. The parties require a determination in respect of only one of these documents, namely Treasury Document 4A. For the reasons set out below, that part of the Treasury Decision is affirmed only with respect to pages 32-38 of Treasury Document 4A.

4. The parties have agreed orders relating to the release of certain documents to the applicant and for the remission to the DPC of its implied decision that it does not hold further documents, and the orders made by the Tribunal reflect that agreement.

Jurisdiction

5. The Decisions, as decisions to refuse to provide access to information in response to an access application, are reviewable by the Tribunal: s 80(d) GIPA Act. The Tribunal’s jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with s 28 of the Civil and Administrative Tribunal Act 2013 and s 9 of the Administrative Decisions Review Act 1997 (ADR Act).

The Tribunal’s task

6. The Tribunal’s task differs with respect to:

1. the documents the subject of the “Cabinet information” claims; and

2. Treasury Document 4A.

7. For the former, the Tribunal’s task is prescribed by s 106 of the GIPA Act, which provides that the Tribunal’s task is initially limited to deciding whether there were reasonable grounds for the claims made.

8. For the latter, the Tribunal’s task, briefly stated, is to decide what the correct and preferable decision on whether access to the requested information should be given is, having regard to the material before it, including relevant factual material and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].

9. In carrying out both tasks, the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure; or in respect of information which an agency has claimed there is such an overriding interest but for which the Tribunal finds there is not: s 107 GIPA Act; University of New South Wales v McGuirk [2006] NSWSC 1362 at [91]. To that end, some parts of these Reasons have been marked ‘NOT FOR PUBLICATION’ and are not to be published or otherwise disclosed to anyone other than the respondents.

10. The material before the Tribunal is:

1. affidavits of Jillian Robertson, solicitor for the applicant affirmed 2 March 2020 and 15 May 2020;

2. statements of Aaron Spadaro, Associate Director in the Strategic Coordination Branch of the DPC, dated 16 April 2020 and 20 May 2020;

3. statement of Jacob Campbell, Director, Executive and Ministerial Services within Treasury dated 16 April 2020;

4. statement of Sarah Johnson, Director, Legal Branch of the DPC dated 17 April 2020;

5. statements of Peter Hurley, Director of Endeavour Holdings Australia Pty Ltd dated 16 April 2020 and 20 May 2020 and cross examination of Mr Hurley;

6. Treasury Document 4A;

7. written submissions from the respondents dated 17 April 2020, 20 May 2020, 1 June 2020 and 11 June 2020;

8. written submissions from the applicant dated 13 May 2020 and 8 June 2020; and

9. oral submissions on behalf of each of the applicant and the respondents.

11. The Tribunal does not have before it the documents the subject of the claims of “Cabinet information”.

12. Each of the statements of Mr Spadaro and Mr Campbell and some of the written submissions of the respondents contain confidential information and have been filed both in an open form and a confidential (redacted) form. Treasury Document 4A was also provided to the Tribunal on a confidential basis.

13. Confidentiality orders were made during the hearing preserving the confidentiality of the information over which claims of confidentiality were made by the respondents.

Background

14. Boolaroo is a suburb of Lake Macquarie. Within Boolaroo is a parcel of land (Site), on which Pasminco Cockle Creek Smelter Pty Ltd (Pasminco) operated a lead and zinc smelter. Parts of the Site are contaminated.

15. In 2001, Pasminco entered into administration. In 2002, a Deed of Company Arrangement was entered into and Ferrier Hodgson were appointed as administrators of the deed (Administrators).

16. On 20 August 2019, the Lake Macquarie Smelter Site (Perpetual Care of Land) 2019 Bill (LMSS Bill) was introduced into the Legislative Assembly. The Second Reading Speech included:

In 2019 the Waste Assets Management Corporation [WAMC], a government agency with particular expertise in managing contaminated landfills, refined the estimate of average annual costs, working with the external administrators. On those refined costs estimates, the net present value of future costs has been assessed as approximately $67 million. Despite the sale of significant portions of the former smelter site, the only remaining potential asset of Pasminco appears to be the land surrounding the containment cell zoned for residential, business or industrial purposes. The value of that land, even when subdivided from the containment cell, is unlikely to exceed the net present value of the cost in perpetuity of maintaining the containment cell, its associated infrastructure and other land

17. The LMSS Bill became the Lake Macquarie Smelter Site (Perpetual Care of Land) Act 2019 (NSW) (LMSS Act). The LMSS Act:

1. had a purpose of providing for the long-term management of the Site;

2. provided for the vesting of the Site in the Hunter and Central Coast Development Corporation (HCCDC) and extinguished various previous interests in the Land (s 5);

3. provided that the HCCDC had the functions of:

1. monitoring, maintaining and repairing the containment cell (being a parcel of land within the Site contaminated with heavy metals) and associated infrastructure;

2. repairing all or parts of the containment cell and associated infrastructure, as necessary;

3. managing the Site to protect the environment and the public from any risk of contamination (s 7);

4. provided that the HCCDC is to facilitate the development of the Site (other than the ‘contaminated land’ as defined) and may sell the Site (other than the ‘contaminated land’) (s 9);

5. provided that the proceeds of the sale of any part of the Site are to be paid into a fund known as the Containment Cell Perpetual Care Fund (Fund), to be administered by the HCCDC (s 10); and

6. provided that the Fund may be used to meet expenditure by the HCCDC in exercising its functions under the LMSS Act (s 10(4)(a)).

18. The HCCDC is an agency within the Department of Planning Industry and Environment (DPIE). It is a statutory corporation with responsibility for planning and delivering economic and urban development in the Hunter Valley and Central Coast regions. As noted above, this includes responsibility for the Fund and development, management and maintenance of the Site.

19. On 8 October 2019, the applicant made the access applications upon which the Decisions were made.

The Statutory Framework

20. The questions which the Tribunal must decide fall for determination in the context of the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides:

3 Object of Act

(1)   In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

21. Section 9 (1) of the GIPA Act provides:

9   Access applications

(1)   A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

22. Section 58 of the GIPA Act deals with how access applications are decided by agencies. Section 58(1)(d) provides:

58   How applications are decided

(1)   An agency decides an access application for government information by:

…

(d)   deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.

23. The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means the agency must, first, identify the information which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].

24. In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane:

5 Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

…

12 Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note: The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

(3)   The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

…

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

…

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2)   The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

…

Table

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…

(f)   prejudice the effective exercise of an agency of the agency’s functions,

…

4 Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure could reasonably be expected to have one or more of the following effects –

...

(d)   prejudice any person’s legitimate business, commercial, professional or financial interests,

...

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

55 Consideration of personal factors of application

(1)   In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

(a)   the applicant’s identity and relationship with any other person,

(b)   the applicant’s motives for making the access application,

(c)   any other factors particular to the applicant.

(2)   The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

(4)   An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5)   An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(6)   An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

25. Thus it may be seen that the GIPA Act creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 GIPA Act), and the applicant has a legally enforceable right to the government information it seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 GIPA Act).

26. There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 GIPA Act).

Cabinet information Claims

27. I turn now to consider the refusal of the DPC and Treasury to provide certain documents on the basis that thowse documents contain “Cabinet information”.

28. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1 to the GIPA Act.

29. Clause 2 of Sch 1 to the GIPA Act 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 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.

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

30. As noted above, the Tribunal’s task in reviewing decisions made by agencies based on claims of Cabinet information is prescribed by s 106 of the GIPA Act.

31. Section 106 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.

32. Section 106 provides for a staged process. That process was described by an Appeal Panel in Infrastructure NSW and Department of the Premier and Cabinet v Mookhey [2018] NSWCATAP 213 at [11], as follows:

It can be seen, therefore, that the process involved in deciding what was the correct and preferable decision was a staged one. First, the Tribunal had to decide whether there were reasonable grounds for the claim of Cabinet information. Second, in the process of arriving at that decision, the Tribunal had to first determine whether the affidavit and other evidence established such grounds before it could look at the information itself. Third, if still not satisfied of such grounds after looking at the information, it had to reject the claim of Cabinet information and then proceed to decide what was the correct and preferable decision. Clearly, and there is no dispute about this, in arriving at the correct and preferable decision the Tribunal could have regard to any other grounds under the GIPA Act against the provision of access that were relied upon.

33. This proceeding concerns the first stage and the question for the Tribunal is whether there were reasonable grounds for Treasury’s claims.

34. The words “reasonable grounds” are to be given their ordinary meaning and it will usually not be helpful to paraphrase that term (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423). A determination of whether there were reasonable grounds for a claim “involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue” (McKinnon, at 430): Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6 (Lock the Gate) at [26].

35. In assessing whether there were reasonable grounds the Tribunal is to have regard to the terms of cl 2, the case law concerning cl 2, the evidence before the Tribunal and the submissions made by the parties.

Clause 2

36. The chapeau to cl 2 draws attention to information contained in particular documents. The particular documents are described in cl 2(1)(a)-(f). In the present case, reliance is placed upon cl 2(1)(b), (d), (e) and (f).

37. Clause 2(1)(b) refers to:

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)

38. This requires consideration of the dominant purpose for which the document (rather than the information within it) was prepared: D’Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61 at [62].

39. Clause 2(1)(d) refers to:

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

40. This clause involves several concepts.

41. As to “deliberation or decision”:

1. the Tribunal in Lock the Gate, stated at [29]-[30]:

[29]   In Re Toomer and Department of Agriculture, Fisheries and Forestry (2003) 78 ALD 645, the Administrative Appeals Tribunal (AAT) held that in the equivalent provision in the Commonwealth freedom of information legislation the words “deliberation” and “decision” “should be given their ordinary meanings of deliberating and considering and of determining and resolving respectively” (at [87]). The AAT also stated that Cabinet’s deliberations are “its thinking processes be they directed to gathering information, analysing information or discussing strategies” and its decisions are “its conclusions as to the courses of action that it adopts be they conclusions as to its final strategy on a matter or its conclusions as to the manner in which a matter is to proceed” (at [88]). It is not necessary for a document to quote Cabinet’s decisions or deliberations verbatim in order to be caught by cl 2(1)(d) (at [88]).

[30]   This Tribunal has adopted the analysis in Re Toomer in the context of Sch 1 cl 2(1)(d) and has noted that cl 2(1)(d) is expansive as it refers not only to documents which “would reveal” information concerning Cabinet deliberations or decisions, but also to those that would “tend to reveal” such information (see, for example, Mookhey v Infrastructure NSW [2017] NSWCATAD 345 and Cooper v NSW Ministry of Health [2018] NSWCATAD 37);

2. the terms “decisions” and “deliberations” should be given “a broad construction”: Mookhey v Infrastructure NSW [2017] NSWCATAD 345 at [44].

42. The expression “would reveal or tend to reveal” used in cl 2(1)(d) (and (e)) is intended to be “expansive”: Lock the Gate at [30].

43. Further, it is sufficient if the document would reveal or tend to reveal “information concerning” Cabinet deliberations as decisions. It is not necessary that the document would reveal or tend to reveal Cabinet’s deliberations or decisions themselves: Lock the Gate at [43].

44. Clause 2(1)(e) refers to:

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

45. In Transport for NSW & Ors v Robinson [2018] NSWCATAP 123 (Robinson), an Appeal Panel held at [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.

46. It is not necessary that Cabinet had actually deliberated or made a decision on the matters referred to in the document: Robinson at [24]; Lock the Gate at [56].

47. Clause 2(1)(e) will apply to a document which contains information showing a Minister considering several options and is not limited to a document which would reveal only one position: Lock the Gate at [58], [60], [61].

48. Clause 2(1)(f) refers to:

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)

49. Clause 2(4) will only be engaged where the information in the document is wholly factual: Bennison vNSW Department of Premier and Cabinet [2016] NSWCATAD 101 at [39]-[43].

50. If a document meets the description of any of the subclauses (a) to (f) of cl 2(1), all of the information in the document is subject to an overriding public interest against disclosure: Lock the Gate at [27].

Evidence

51. The evidence before the Tribunal relevant to the Cabinet information claims is contained in the statements of Mr Spadaro and Mr Campbell. Neither of these gentlemen was required for cross examination and no submission was made to the effect that the Tribunal should not accept their evidence.

52. Mr Spadaro is an Associate Director in the Strategic Coordination Branch of the DPC, responsible for managing a small team providing strategic whole of government advice to the DPC executive and the Premier on emerging policy matters relating to the environment and primary industry portfolios, including related cabinet business. He was previously a Senior Policy Officer and Acting Associate Director, undertaking the same types of work within the Strategic Coordination Branch of the DPC.

53. Mr Spadaro is very familiar with the Cabinet process at the DPC, including having direct insight into the process of drafting Cabinet submissions, putting submissions before Cabinet, consultation on Cabinet proposals and how Cabinet submissions are progressed.

54. Part of the role of the Strategic Coordination Branch is to ensure that whole of government considerations and risks are taken into account in the Cabinet decision making process. This is done by means including the provision of comments on draft submissions once lodged, and on final submissions and when requested, providing further in depth strategic analysis through briefing papers, which set out a recommended position for the Premier’s consideration in making decisions in Cabinet. These briefing papers are known as Blues.

55. Mr Campbell is the Director, Executive and Ministerial Services within Treasury. His responsibilities include managing the Treasury Cabinet Unit and the Cabinet process for Treasury Cluster Ministers (namely, the Treasurer, the Minister for Industry, Trade and Regional New South Wales, Minister for Jobs, Investment, Tourism and Western Sydney and the Minister for Finance and Small Business).

56. Their evidence is both general (including Cabinet processes), and particular (as to the documents the subject of the claims).

57. From their general evidence, the following is germane to the determination the Tribunal is required to make:

1. the New South Wales Cabinet Manual (Cabinet Manual) describes the process for the preparation of proposals for Cabinet. It is followed as departmental policy as closely as possible within New South Wales Government agencies. It includes processes which are in place to protect the confidentiality of the Cabinet proceedings, including:

1. a secure document management system known as eCabinet;

2. the marking of Cabinet documents as “Sensitive: NSW Cabinet” or “Cabinet in Confidence”;

3. rules set out in the Cabinet Manual which are enforced by the DPC’s Cabinet branch and reinforced by the Cabinet Liaison Officers within each agency;

2. the Cabinet Manual provides that a department or agency should only draft a submission to Cabinet on the instruction of the relevant Minister;

3. in accordance with the provisions of the Cabinet Manual, the proposal for the LMSS Bill concerning the Site came before Cabinet because [NOT FOR PUBLICATION];

4. in June 2019, the Strategic Coordination Branch of the DPC was requested by the Cabinet Branch to verify its support for the matter coming to Cabinet;

5. Treasury was consulted on [NOT FOR PUBLICATION], and this included Treasury being provided with copies of a draft Cabinet submission before Cabinet considered that submission on [NOT FOR PUBLICATION];

6. Treasury prepared a briefing, dated 5 July 2019 for the Treasury Cluster Ministers as advice on Treasury’s recommended position for the proposals in the [NOT FOR PUBLICATION];

7. [NOT FOR PUBLICATION]; and

8. each of the documents the subject of the Cabinet information claims made by the DPC and Treasury:

1. does not consist solely of factual material;

2. to the best of their knowledge, has not been made publicly available by approval of the Premier or Cabinet.

58. Their particular evidence is considered below, by reference to the documents to which it relates.

Submissions

59. The essence of the submissions of the DPC and Treasury is that the elements of the Cabinet information claims are made out by the evidence of Mr Spadaro and Mr Campbell, that such evidence has not been challenged and it should be accepted.

60. The applicant’s principal submission was that the Tribunal should inspect the documents over which a Cabinet information claim has been made and form its own conclusions in the absence of the applicant’s ability to make detailed submissions with respect to those documents. For many of the documents in issue, this was the only submission made by the applicant (other specific submissions are considered by reference to particular documents below).

61. To the extent that this submission suggests that the Tribunal should inspect the documents as part of the first stage of the process for which s 106 of the GIPA Act provides, it is rejected as it is directly inconsistent with the statutorily prescribed task to be performed at that first stage.

62. To the extent that this submission suggests that the Tribunal should inspect the documents as part of the second stage because it would not be satisfied at the first stage that there were reasonable grounds for the claims made, this will of course turn on the Tribunal’s assessment as to whether there were reasonable grounds for those claims.

63. It appears to be common ground that none of the exceptions set out in cl 2 are engaged.

DPC – Cabinet documents

64. I turn now to consider the 16 documents over which the DPC has made a Cabinet information claim.

Document 1

65. Document is described in the Schedule to the DPC Decision (DPC Schedule) as “Email chain – RE: SENSITIVE: NSW CABINET – Pasminco – Former Smelter Site – proposed legislation”.

66. The DPC relies upon cl 2(1)(e).

67. The evidence concerning Document 1 is that Document 1:

1. is an email chain between DPIE staff and DPC staff and subsequent internal correspondence between DPC staff, dated between 12 and 13 June 2019. Mr Spadaro wrote one of the emails;

2. was created before Cabinet’s deliberation and decision [NOT FOR PUBLICATION];

3. in particular, contains an originating email created by Mr Weiley, Manager of Cabinet and Executive Coordination at the DPIE. It is apparent from that email that it was created to add an item to the agenda for the Cabinet meeting [NOT FOR PUBLICATION]. In this regard, Mr Spadaro’s evidence is:

1. that the DPIE would not seek to add an agenda item for a Cabinet meeting in this way unless such a course had been approved for the relevant Minister;

2. the Cabinet Manual provides that it is a responsibility of Minister to put forward urgent and unanticipated proposals to Cabinet;

3. it is consistent with the Cabinet Manual that Mr Weiley would not have contacted the DPC to add an agenda item to Cabinet without the consideration and approval of the Minister;

4. tends to reveal the position which the Minister for Planning [NOT FOR PUBLICATION] was considering taking and had been recommended to take in Cabinet. This is because the email contains a summary by Mr Weiley of the purpose of the proposed Cabinet Submission, which reveals the position which the Minister for Planning was proposing to put before Cabinet. The email states as follows:

[NOT FOR PUBLICATION]; and

5. contains text, the key messages, intent and position of which formed the basis of the wording eventually used in [NOT FOR PUBLICATION].

68. This evidence is capable of supporting findings that Document 1 was prepared before Cabinet’s deliberation or decision on a matter [NOT FOR PUBLICATION]; and that Document 1 reveals or tends to reveal the position that the Minister for Planning was taking or had been recommended to take on that matter in Cabinet.

69. The applicant submitted that Mr Spadaro’s evidence that the DPIE would not seek to add an agenda item for a Cabinet meeting absent Ministerial approval was speculative. I do not regard Mr Spadaro’s evidence as speculative, given his experience, the absence of any challenge to his evidence, and the fact that Mr Campbell gave similar (unchallenged) evidence.

70. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 1.

Document 2

71. Document 2 is also described in the DPC Schedule as “Email chain – RE: SENSITIVE: NSW CABINET – Pasminco – Former Smelter Site – proposed legislation”.

72. The DPC again relies upon cl 2(1)(e).

73. The evidence concerning Document 2 is that Document 2:

1. is an email chain, with subject line SENSITIVE: NSW CABINET – Pasminco – Former Smelter Site – proposed legislation” between DPIE staff and staff of the DPC and subsequent internal correspondence between Mr Spadaro and Ms Brooks, Assistant Advisor to Cabinet at the DPC, dated 14 June 2019;

2. was created before Cabinet’s deliberation [NOT FOR PUBLICATION]; and

3. tends to reveal the position which the Minister for Planning was considering taking and had been recommended to take in Cabinet, and in particular, the original email in the email chain is the same email created by Mr Weiley referred to with respect to Document 1. Document 2 contains the same summary of the purpose of the proposed Cabinet Submission, which reveals the position which the Minister for Planning was proposing to put before Cabinet at that time and it contains the same passage as is contained in Document 1 and extracted above.

74. As Document 2 contains the email included in Document 1, and the evidence in respect of that email was capable of supporting findings that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 1, it follows that I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 2.

Document 3

75. Document 3 is described in the DPC Schedule as “Email chain – Cab Sub Ɩ Future Uses of Former Pasminco Smelter site, Lake Macquarie”.

76. The DPC relies upon cl 2(1)(e).

77. The evidence concerning Document 3 is that Document 3:

1. contains emails dated 21 June 2019 between DPC staff;

2. was created before Cabinet’s deliberation [NOT FOR PUBLICATION];

3. in particular contains an email drafted by Mr Spadaro and sent to, among others, Ms Foster-Thorpe, the Acting Executive Director, Resources, Land Use and Regional Policy at the DPC and which:

1. was created by Mr Spadaro for the purpose of proactively informing Ms Foster-Thorpe about an upcoming urgent and previously unplanned Cabinet submission likely to require her attention once it was lodged for consideration;

2. set out what Mr Spadaro understood to be the position of various departments and agencies in respect of that submission. Mr Spadaro’s evidence is that a key element of the DPC’s reporting and escalation obligations is to canvass and communicate areas of consensus and disagreement on policy issues amongst departments and agencies;

3. tends to reveal the position which the Minister for Planning was considering taking and had been recommended to take in Cabinet. This was because it contains a summary of the anticipated [NOT FOR PUBLICATION]. In particular it includes:

[NOT FOR PUBLICATION]

This summary was based on verbal advice Mr Spadaro had received from Mr Wills, Regional Director of the DPC Hunter Team and Mr Oxford, Associate Director at NSW Treasury regarding the content of the proposed submission and their views on the need for the proposed submission to be urgently considered by Cabinet. Mr Spadaro also received verbal advice on those points from Mr Weiley.

4. includes, with respect to the position of the DPIE:

[NOT FOR PUBLICATION]

Mr Spadaro had been informed of the position of the DPIE by Mr Weiley and Mr Spadaro understood this to be the position that the Minister for Planning was considering taking and had been recommended to take on this issue in Cabinet. Mr Spadaro also spoke with Mr Weiley about [NOT FOR PUBLICATION]. The conversation between them included:

Mr Spadaro: [NOT FOR PUBLICATION]

Mr Weiley: [NOT FOR PUBLICATION]

Mr Spadaro: [NOT FOR PUBLICATION]

Mr Weiley: [NOT FOR PUBLICATION.; and

5. tends to reveal the position that the Premier was considering taking or had been recommended to take on this issue on Cabinet because [NOT FOR PUBLICATION], namely:

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION] were identified as part of the process of formulating the positions and recommendations which would ultimately be communicated to the Premier to inform her position on the issue in Cabinet.

78. This evidence is capable of supporting findings that Document 3 was prepared before Cabinet’s deliberation or decision, [NOT FOR PUBLICATION] on a matter [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Planning and the Premier were taking or had been recommended to take on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 3.

Document 4

79. Document 4 is recorded in the DPC Schedule as “Email chain - Decision needed on blue for Pasminco Cab Sub Sensitive: NSW Cabinet”.

80. The DPC relies upon cl 2(1)(e).

81. The evidence concerning Document 4 is that Document 4:

1. contains a chain of emails dated 4 July 2019, to which Mr Spadaro was copied;

2. was created before Cabinet’s deliberation [NOT FOR PUBLICATION];

3. in particular, contains an originating email drafted by Ms Baudinette, Director of Strategic Coordination at the DPC, which:

1. was drafted for the purpose of determining whether the DPC was required to prepare a brief for the Premier in relation to a Cabinet item with recommendation for her consideration (i.e. a Blue);

2. concerned whether a Blue was required with respect to the [NOT FOR PUBLICATION];

3. indicated that a draft submission had, by that stage, been provided and that it was anticipated that it would be uploaded to eCabinet that day or the subsequent day;

4. [NOT FOR PUBLICATION];

5. contains a summary of the background to the draft [NOT FOR PUBLICATION] as follows:

[NOT FOR PUBLICATION];

6. discloses the matters in the submission for which Cabinet’s approval would be sought and as a result reveals the position that the Minister for Energy and Environment was considering taking and had been recommended to take and would take on the issue in Cabinet. In this regard Mr Spadaro had a conversation with Mr Weiley in which Mr Spadaro requested an update on the progress the submission following [NOT FOR PUBLICATION]. That conversation included:

Mr Spadaro: “I assume the submission is now close? Can we get a copy?”

Mr Weiley said: “Yes it’s close.”

Mr Spadaro: “What are the main recommendations? [NOT FOR PUBLICATION]”

Mr Weiley said: [NOT FOR PUBLICATION]

Mr Spadaro’s evidence is that this summary of the [NOT FOR PUBLICATION] was based on the same verbal advice received from the DPC Hunter Team, NSW Treasury and the Manager, Cabinet and Executive Coordination at the DPIE. Part of that summary of the background re-uses the words that Mr Spadaro had previously drafted to brief Ms Baudinette on 21 June 2019 (as set out in Document 3). It also incorporates new verbal information on the detail of [NOT FOR PUBLICATION] which Mr Spadaro had subsequently obtained from Mr Weiley on or around 21 June 2019 on the precise nature of the recommendations and which Mr Spadaro had conveyed to Ms Baudinette verbally to assist her compilation of the advice included in the [NOT FOR PUBLICATION] section of Ms Baudinette’s email and the contents of the email from Ms Baudinette reflect the information that Mr Spadaro gave to her;

7. includes:

[NOT FOR PUBLICATION]

which [NOT FOR PUBLICATION] thus Document 4 tends to reveal the position which those Ministers were considering taking, had been recommended to take and would be taking at the Cabinet meeting on 8 July 2019; and

8. tends to reveal the position that the Premier was considering taking and being recommended to take on this issue in Cabinet. This is because Document 4 [NOT FOR PUBLICATION] were identified as part of the process of formulating the positions and recommendations which would ultimately be communicated to the Premier to inform her position on the issue in Cabinet.

82. This evidence is capable of supporting findings that Document 4 was prepared before Cabinet’s deliberation or decision, [NOT FOR PUBLICATION] on a matter [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position various Ministers, including the Premier, were considering taking or had been recommended to take on that matter in Cabinet.

83. The applicant submitted that the key question for the Tribunal’s consideration is whether the email exchange is too preliminary to reveal the matters described by Mr Spadaro. However, I am satisfied on the evidence set out above that the email exchange is not too preliminary, and that the evidence is capable of supporting a finding that Document 4 reveals or tends to reveal the position that various Ministers were considering taking or had been recommended to take in Cabinet on a matter before Cabinet for deliberation or decision.

84. The applicant also submitted that the Tribunal needs to consider what the intention or purpose was at the time of creation of Document 4. I do not regard this as relevant. Clause 2(1)(e) does not require consideration of intention or purpose.

85. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 4.

Document 7

86. Document 7 is described in the DPC Schedule as “Brief-legislation for the long-term management of land at former smelter site at Lake Macquarie” and Document 7

87. The DPC relies upon cl 2(1)(e).

88. The evidence concerning Document 7 is that Document 7:

1. is a Blue titled “Legislation for the long-term management of land at former smelter site at Lake Macquarie” prepared by Mr Spadaro and dated 5 July 2019;

2. was prepared before [NOT FOR PUBLICATION];

3. was created for the purposes of setting out the DPC’s views and advocating a position on the [NOT FOR PUBLICATION] for the Premier;

4. reveals:

1. the position which the DPC team was recommending the Premier take with respect to the [NOT FOR PUBLICATION] in Cabinet and in particular, that the Premier [NOT FOR PUBLICATION];

2. the position which the Minister for Environment and Energy had taken with respect to the [NOT FOR PUBLICATION] in Cabinet. Document 7 identifies that [NOT FOR PUBLICATION] and contains a summary of what Cabinet approval was sought. That was summarised as:

[NOT FOR PUBLICATION]; and

5. tends to reveal the position which the Treasurer would take, had been recommended to take or was considering taking in Cabinet with respect to [NOT FOR PUBLICATION]. In this regard, Document 7 tends to reveal that [NOT FOR PUBLICATION]

89. This evidence is capable of supporting findings that Document 7 was prepared before Cabinet’s deliberation or decision [NOT FOR PUBLICATION] on a matter [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that various Ministers had taken, would take or had been recommended to take on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 7.

Document 9

90. Document 9 is described in the DPC Schedule as “Email chain – RE: [Sensitive: NSW Cabinet] Pasminco Cab Sub”.

91. The DPC relies upon cll 2(1)(d) and (e).

92. The evidence concerning Document 9 is that Document 9:

1. is a chain of emails are dated 22 July 2019;

2. was created after [NOT FOR PUBLICATION] and before the [NOT FOR PUBLICATION];

3. in particular, includes an original email drafted by Mr Spadaro for the purpose of proactively notifying the Director, Strategic Co-ordination, of the anticipated next steps toward Cabinet consideration of the [NOT FOR PUBLICATION];

4. tends to reveal the deliberations and decision of Cabinet in relation to [NOT FOR PUBLICATION] and the position which the Minister for Planning was considering taking and had been recommended to take in Cabinet in relation to the [NOT FOR PUBLICATION];

5. includes a statement of the outcome of [NOT FOR PUBLICATION]. This includes [NOT FOR PUBLICATION];

6. identifies that [NOT FOR PUBLICATION]; and

7. includes a summary of what was at that time proposed to be included in [NOT FOR PUBLICATION]. In particular, Document 9 reveals that [NOT FOR PUBLICATION].

93. This evidence is capable of supporting findings that Document 9 was prepared after Cabinet’s deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it would reveal or tend to reveal information concerning such deliberation or decision. In particular, it reveals or tends to reveal [NOT FOR PUBLICATION]. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(d) with respect to Document 9.

94. This evidence is also capable of supporting findings that Document 9 was prepared before a Cabinet deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Planning was considering taking or had been recommended to take on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 9.

Document 10

95. Document 10 is recorded in the DPC Schedule as “Email chain – STRATCO – Cabinet Agenda Setting feedback [Sensitive: NSW Cabinet].

96. The DPC relies upon cll 2(1)(d) and (e).

97. The evidence concerning Document 10 is that Document 10:

1. comprises a chain of emails between DPC staff with the subject line “STRATCO – Cabinet agenda setting feedback” dated 23 and 24 July 2019 which refer to the status and potential sensitivities surrounding a number of priority submissions for Cabinet consideration by various teams within strategic coordination in the second half of 2019 of which Mr Spadaro was aware;

2. was created after [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION];

3. in particular, contains an originating email drafted by Ms Luschwitz which:

1. was drafted for the purpose of providing a summary to the Resources, Justice and Safer Communities Teams within strategic coordination of a Cabinet Agenda setting meeting held on 23 July 2019. The meeting referred to in that email is a regular discussion held between representatives of the Premier’s office, DPC Cabinet, DPC Legal and Strategic Coordination Branch to discuss Cabinet planning priorities and the forward Cabinet Agenda;

2. tends to reveal the deliberations and decisions of Cabinet in relation to the [NOT FOR PUBLICATION] and the position which the Minister for Planning was considering taking and had been recommended to take in relation to the [NOT FOR PUBLICATION] in Cabinet;

3. contains a summary of issues for imminent Cabinet consideration, including an indication of the more pressing policy priorities for the Premier’s office and the Cabinet at that time;

4. reveals that [NOT FOR PUBLICATION];

4. also contains a response to Ms Luschwitz’s email, which response included a summary of what was at that time proposed to be included in [NOT FOR PUBLICATION], and:

1. in particular that [NOT FOR PUBLICATION];

2. [NOT FOR PUBLICATION] and is the same summary as is included in Document 9, which Mr Spadaro prepared; and

5. includes in an email from Ms Luschwitz, the following in relation to “Pasminco”: [NOT FOR PUBLICATION]

98. This evidence is capable of supporting findings that Document 10 was prepared after Cabinet’s deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it would reveal or tend to reveal information concerning such deliberation or decision. In particular, [NOT FOR PUBLICATION]. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(d) with respect to Document 10.

99. This evidence is also capable of supporting findings that Document 10 was prepared before a Cabinet deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Planning was considering taking and had been recommended to take on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 10.

Document 11

100. Document 11 is described in the DPC Schedule as “Email chain – STRATCO Cabinet agenda setting feedback [Sensitive: NSW Cabinet]”.

101. The DPC relies upon cll 2(1)(d) and (e).

102. The evidence concerning Document 11 is that Document 11:

1. comprises a chain of email correspondence between DPC staff dated 24 July 2020 in which the original and final emails were drafted by Mr Spadaro;

2. was created after [NOT FOR PUBLICATION] and before [NOT FOR PUBLICATION];

3. in particular, contains an originating email which:

1. was created by Mr Spadaro for the purpose of providing an update to the Director and Acting Executive Director of the Strategic Coordination Branch on the matters raised at the meeting between the Premier’s office, DPC Cabinet, DPC Legal and Strategic Coordination Branch to discuss Cabinet Planning Priorities and the forward Cabinet Agenda;

2. tends to reveal the position which the Minister for Planning had been recommended to take and was considering taking to Cabinet in relation to [NOT FOR PUBLICATION];

3. includes a summary of what was at that time proposed to be included in the [NOT FOR PUBLICATION]and in particular reveals that [NOT FOR PUBLICATION]. This reveals that the position that the Minister for Planning was considering taking and had been recommended to take in Cabinet was [NOT FOR PUBLICATION]; and

4. includes “Planning CLO confirms [NOT FOR PUBLICATION]”. The reference to “Planning CLO” is a reference to the Cabinet Liaison Officer at the Department of Planning, being Mr Weiley. That statement was based on a brief conversation between Mr Spadaro and Mr Weiley, which included:

Mr Spadaro: [NOT FOR PUBLICATION]

Mr Weiley [ NOT FOR PUBLICATION]

Mr Spadaro: [NOT FOR PUBLICATION]

Mr Weiley: [NOT FOR PUBLICATION]

Mr Spadaro understood the submission was in the final stages of drafting at that point. As the Cabinet Manual provides that a department or agency should only draft a submission on the instruction of the relevant Minister, it is likely that the Minister for Planning would have been aware of the submission and broadly approved of its contents at that stage; although the Minister would also approve the final version.

103. This evidence is capable of supporting findings that Document 11 was prepared after Cabinet’s deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it would reveal or tend to reveal information concerning such deliberation or decision. In particular, [NOT FOR PUBLICATION]. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(d) with respect to Document 11.

104. This evidence is also capable of supporting findings that Document 11 was prepared before a Cabinet deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Planning was considering taking or had been recommended to take on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 11.

Document 12

105. Document 12 is described in the DPC Schedule as “Email chain – RE: Pasminco and Sydney Water Submissions [Sensitive: NSW Cabinet]”.

106. The DPC relies upon cll 2(1)(d) and (e).

107. The evidence concerning Document 12 is that Document 12:

1. is an email chain between DPC staff of emails dated 26 July 2019;

2. was created after [NOT FOR PUBLICATION]and before [NOT FOR PUBLICATION];

3. includes an originating email, the purpose of which was to provide an update to policy officers on the progress of [NOT FOR PUBLICATION] and a different Cabinet submission in relation to [NOT FOR PUBLICATION];

4. also includes an email in response drafted by Mr Spadaro the purpose of which was to provide an update to DPC Cabinet Branch on the process that Mr Spadaro expected would be required in determining whether a Blue was to be prepared in relation to [NOT FOR PUBLICATION]; and

5. tends to reveal the deliberations and decision of Cabinet in relation to [NOT FOR PUBLICATION] and the position which the Minister for Planning had been recommended to take and was considering taking to Cabinet in relation to the [NOT FOR PUBLICATION], because it reveals that [NOT FOR PUBLICATION]

108. This evidence is capable of supporting findings that Document 12 was prepared after Cabinet’s deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it would reveal or tend to reveal information concerning such deliberation or decision. In particular, [NOT FOR PUBLICATION]. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(d) with respect to Document 12.

109. This evidence is also capable of supporting findings that Document 12 was prepared before a further Cabinet deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that had the Minister for Planning had been recommended to take and was considering taking on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 12.

Document 13

110. Document 13 is described in the DPC Schedule as “Email chain (31 July 2019) – STRATCO – Cabinet agenda setting feedback [Sensitive: NSW Cabinet]”.

111. The DPC relies upon cll 2(1)(d) and (e).

112. The evidence concerning Document 13 is that Document 13:

1. is an email chain between DPC staff containing emails dated 30 and 31 July 2019, one of which was sent to Mr Spadaro;

2. was created after [NOT FOR PUBLICATION] and before [NOT FOR PUBLICATION];

3. in particular, includes an originating email drafted by Ms Luschwitz created for the purpose of providing a summary to the Strategic Coordination Branch of a Cabinet Agenda Setting Meeting held on 30 July 2019. That meeting is a regular meeting held between representatives of the Premier’s Office, DPC Cabinet, DPC Legal and Strategic Coordination Branch to discuss Cabinet Planning Priorities and the Full Cabinet Agenda;

4. tends to reveal the deliberations of Cabinet in relation to [NOT FOR PUBLICATION] and in particular reveals [NOT FOR PUBLICATION]. It includes [NOT FOR PUBLICATION]. Ms Boyd is the General Counsel of DPC; and

5. refers to other issues which were on the Cabinet Agenda at that time and tends to reveal the deliberations of Cabinet and the position which Ministers were recommended to take or were considering taking in Cabinet. In particular, Document 13 tends to reveal the position the Minister for Customer Service was considering taking in relation to [NOT FOR PUBLICATION].

113. This evidence is capable of supporting findings that Document 13 was prepared after Cabinet’s deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it would reveal or tend to reveal information concerning such deliberation or decision. In particular, [NOT FOR PUBLICATION]. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(d) with respect to Document 13.

114. This evidence is also capable of supporting findings that Document 13 was prepared before a Cabinet deliberation or decision on a matter, namely [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Customer Service was considering taking on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 13.

Document 14

115. Document 14 is described in the DPC Schedule as “Email chain – RE: Cab Sub Ɩ Legislation for the long-term management of land at former smelter site at Lake Macquarie”.

116. The DPC relies upon cll 2(1)(d) and (e).

117. The evidence concerning Document 14 is that Document 14:

1. is an email chain between Mr Spadaro and Mr Hare, the Acting Executive Director of the Legal Branch of the DPC, dated between 29 July 2019 and 14 August 2019;

2. was created after [NOT FOR PUBLICATION] and before [NOT FOR PUBLICATION];

3. in particular contains an originating email drafted by Mr Spadaro, the purpose of which (and of his follow up emails) was to obtain the views of the Legal Branch of the DPC in relation to [NOT FOR PUBLICATION] for the purposes of informing the Policy Branch’s commentary on [NOT FOR PUBLICATION].

4. tends to reveal the position which the Minister for Planning was considering taking and had been recommended to take in relation to [NOT FOR PUBLICATION];

5. reveals the subject matter of the proposed Cabinet Submission for which approval was sought. In particular:

1. the originating email states:

[NOT FOR PUBLICATION]

2. a follow-up email drafted by Mr Spadaro states as follows:

[NOT FOR PUBLICATION]

3. the above information was based on discussions between Mr Spadaro and Mr Weiley (including those set out above) with respect to what Mr Weiley understood [NOT FOR PUBLICATION] would cover in order to respond to the issues raised by Cabinet in the deliberations with respect to [NOT FOR PUBLICATION]. By this time Mr Spadaro was aware from the conversations with Mr Weiley that the draft Cabinet Submission was in the final stages of drafting, which, based on Mr Spadaro’s experience, would only have been carried out at the direction of the Minister; and

6. also tends to reveal the deliberations of Cabinet in relation to [NOT FOR PUBLICATION]. In particular, it reveals that Cabinet [NOT FOR PUBLICATION]. It also reveals that [NOT FOR PUBLICATION].

118. This evidence is capable of supporting findings that Document 14 was prepared after Cabinet’s deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it would reveal or tend to reveal information concerning such deliberation or decision. In particular [NOT FOR PUBLICATION]. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(d) with respect to Document 14.

119. This evidence is also capable of supporting findings that Document 14 was prepared before a Cabinet deliberation or decision on a matter, (namely [NOT FOR PUBLICATION]); and that it reveals or tends to reveal the position that the Minister for Planning was considering taking or had been recommended to take on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 14.

Document 15

120. Document 15 is recorded in the DPC Schedule as “Email chain – RE: Menindee + Pasminco [Sensitive: NSW Cabinet]”.

121. The DPC relies upon cll 2(1)(d) and (e).

122. The evidence concerning Document 15 is that Document 15:

1. is an email chain between DPC staff, dated 6 August 2019. Mr Spadaro was copied into the original email drafted by Ms Luschwitz and sent to Ms Morris, Associate Director at the DPC and Mr Spadaro drafted one of the subsequent emails;

2. was created after [NOT FOR PUBLICATION] and before [NOT FOR PUBLICATION];

3. in particular contains an originating email, the purpose of which was to obtain an update in relation to whether it was necessary to prepare a Blue in relation to [NOT FOR PUBLICATION]and another issue which was before the Cabinet at that time [NOT FOR PUBLICATION];

4. tends to reveal the position which the Minister for Planning was considering taking and had been recommended to take in Cabinet in relation to the [NOT FOR PUBLICATION]and in particular it states in an email which Mr Spadaro drafted:

[NOT FOR PUBLICATION]

Mr Spadaro’s evidence is that his knowledge of what was to be included in the submission was based on verbal updates provided to him by Mr Weiley and that he had a conversation with Mr Weiley to confirm the time frame for Cabinet consideration of [NOT FOR PUBLICATION] and to confirm the content of the proposed submission, particularly with respect to [NOT FOR PUBLICATION]. One such update was a conversation on 6 August 2019, which included:

Mr Spadaro: [NOT FOR PUBLICATION]

Mr Weiley: [NOT FOR PUBLICATION]

Mr Spadaro understands that [NOT FOR PUBLICATION]

Mr Spadaro’s evidence is also that his knowledge of the proposed submission was also based on verbal updates from Ms Misevska, the Chief Operating Officer of the HCCDC and it was apparent to him from those conversations and the extent to which the submission was developed, that the position communicated to him was one that the Minister for Planning was considering taking and being recommended to take in the Cabinet. Those verbal updates included a conversation on 6 August 2019 which included:

Mr Spadaro: [NOT FOR PUBLICATION]

Ms Misevska: [NOT FOR PUBLICATION]

Mr Spadaro: “Are you able to provide me an advance draft copy to allow me to get a head start on our review?”

Ms Misevska: “Can do, remembering it is Cabinet-in-Confidence, still in draft and awaits Minister’s Office approval. So please don’t share.”;

5. tends to reveal the deliberations of Cabinet in relation to [NOT FOR PUBLICATION] and in particular reveals:

1. [NOT FOR PUBLICATION];

2. further detail of Cabinet’s deliberation [NOT FOR PUBLICATION]:

[NOT FOR PUBLICATION]; and

6. tends to reveal the position which the Premier had been recommended to take and was considering taking on the issue in Cabinet. Document 15 reveals [NOT FOR PUBLICATION] and specifically includes:

[NOT FOR PUBLICATION]

123. This evidence is capable of supporting findings that Document 15 was prepared after Cabinet’s deliberation or decision on a matter [NOT FOR PUBLICATION]; and that it would reveal or tend to reveal information concerning such deliberation or decision. In particular [NOT FOR PUBLICATION]. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(d) with respect to Document 15.

124. This evidence is also capable of supporting findings that Document 15 was prepared before a Cabinet deliberation or decision on a matter, [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Planning and the Premier were considering taking or had been recommended to take on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 15.

Document 17

125. Document 17 is described in the DPC Schedule as “Brief - Lake Macquarie Smelter Site (Perpetual Care of Land) Bill 2019”.

126. The DPC relies upon cl 2(1)(e).

127. The evidence concerning Document 17 is that Document 17:

1. was a Blue prepared by Mr Spadaro and dated 15 August 2019;

2. was created for the purpose of setting out the DPC’s views as well as advocating a position to the Premier concerning [NOT FOR PUBLICATION];

3. was submitted to the Premier on 16 August 2019 to assist her decision making on the matter in Cabinet;

4. was prepared before Cabinet’s Decision [NOT FOR PUBLICATION];

5. was prepared for the purpose of providing the DPC’s advice to the Premier with respect to [NOT FOR PUBLICATION];

6. reveals:

1. the position which the Premier had been recommended to take and was considering taking in Cabinet with respect to [NOT FOR PUBLICATION]. In particular, Document 17 reveals [NOT FOR PUBLICATION];

2. the position which the Minister for Water, Property and Housing had taken in Cabinet with respect to [NOT FOR PUBLICATION];

3. that the [NOT FOR PUBLICATION]) and contained a summary of what the submission contains and for what Cabinet’s approval was sought; and

7. includes information which tends to reveal details about Cabinet’s deliberations with respect to [NOT FOR PUBLICATION], and in particular, Document 17 reveals that [NOT FOR PUBLICATION].

128. This evidence is capable of supporting findings that Document 17 was prepared before a Cabinet deliberation or decision on a matter, namely [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Premier was considering taking or would take on that matter in Cabinet. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 17.

Document 18

129. Document 18 is described in the DPC Schedule as “Final Comments – Lake Macquarie Smelter Site (Perpetual Care of Land) Bill 2019”.

130. The DPC relies upon cl 2(1)(b) and (e).

131. The evidence concerning Document 18 is that Document 18:

1. was prepared by Mr Spadaro to provide a summary of the DPC’s position with respect to [NOT FOR PUBLICATION];

2. was prepared with the dominant purpose of being submitted to Cabinet for Cabinet’s consideration;

3. was approved by the Director and Acting Executive Director of the Strategic Coordination Branch of the DPC on 19 August 2019;

4. was ultimately submitted to Cabinet for its consideration [NOT FOR PUBLICATION]; and

5. reveals:

1. the position which Ministers had been recommended to take and were considering taking in Cabinet, and in particular it contains a summary of what Cabinet’s approval was sought for in the [NOT FOR PUBLICATION];

2. [NOT FOR PUBLICATION];

3. details about Cabinet’s deliberation in relation to [NOT FOR PUBLICATION] and in particular that [NOT FOR PUBLICATION].

132. This evidence is capable of supporting a finding that Document 18 was prepared for the dominant purpose of its submission to Cabinet for Cabinet’s consideration. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(b) with respect to Document 18.

133. This evidence is also capable of supporting findings that Document 18 was prepared after a Cabinet deliberation or decision on a matter, namely [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that Ministers had taken on that matter in Cabinet. It is also capable of supporting findings that Document 18 was prepared before a Cabinet deliberation or decision on a matter, namely [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position which Ministers had been recommended to take on that matter in Cabinet.

134. I am thus satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Document 18.

Documents 19 and 20

135. Documents 19 and 20 are described in the DPC Schedule as “Cabinet Submission”.

136. DPC relies upon cl 2(1)(b) and (e).

137. The evidence concerning Documents 19 and 20 is that Documents 19 and 20:

1. are each a Cabinet submission, drafted by the DPIE for the Minister for Energy and the Environment (Document 19) and for the Minister for Water, Property and Housing (Document 20) being the [NOT FOR PUBLICATION] and the [NOT FOR PUBLICATION] respectively;

2. were prepared for the dominant purpose of submission to Cabinet for Cabinet’s consideration;

3. were submitted to Cabinet for Cabinet’s consideration on [NOT FOR PUBLICATION] and [NOT FOR PUBLICATION] respectively; and

4. were obtained from eCabinet which the secure document management system which holds official records of Cabinet.

138. This evidence is capable of supporting a finding that Documents 19 and 20 were prepared for the dominant purpose of their submission to Cabinet for Cabinet’s consideration. I am satisfied that there were reasonable grounds for the DPC’s claim under cl 2(1)(b) with respect to Documents 19 and 20.

139. This evidence is also capable of supporting findings that Documents 19 and 20 were prepared before a Cabinet deliberation or decision on a matter, [NOT FOR PUBLICATION]; and that they reveal or tend to reveal the position that the Minister for Energy and the Environment and the Minister for Water, Property and Housing were considering taking, would take or had been recommended to take on that matter in Cabinet. I am thus satisfied that there are reasonable grounds for the DPC’s claim under cl 2(1)(e) with respect to Documents 19 and 20.

Cabinet Documents - Treasury

140. I turn now to consider the 10 documents over which Treasury has made Cabinet information claims.

Document 2

141. Document 2 is described in the schedule to the Treasury Decision (Treasury Schedule) as “C2019-0100 Cabinet Ministers Brief Legislation for the long-term management of land at former smelter site at Lake Macquarie P19_1423.docx”.

142. Treasury relies upon cl 2(1)(e).

143. The evidence concerning Document 2 is that Document 2:

1. is dated 5 July 2019 and was created before Cabinet’s deliberations [NOT FOR PUBLICATION];

2. was drafted by Mr Sedwell the then Director, Change and Implementation in the Transport Infrastructure and Transport Division within the Policy and Budget Group at Treasury;

3. is a brief with the subject matter Cabinet Submission [NOT FOR PUBLICATION];

4. is marked “Sensitive: NSW Cabinet”;

5. was created for the purpose of advising the Treasurer and other Treasury Cluster Ministers on the Cabinet Submission on [NOT FOR PUBLICATION], which was to be considered at the Cabinet meeting [NOT FOR PUBLICATION], and specifically to inform and advise the Treasurer on the Cabinet Submission in advance of that Cabinet meeting;

6. includes [NOT FOR PUBLICATION]; and

7. tends to reveal:

1. the position which the Treasurer was considering taking and had been recommended to take in Cabinet;

2. the position which the Minister for Water, Property and Housing was considering taking, had been recommended to take and would take in Cabinet, because [NOT FOR PUBLICATION].

144. This evidence is capable of supporting findings that Document 2 was prepared before a Cabinet deliberation or decision on a matter, namely [NOT FOR PUBLICATION]; and that it tends to reveal the position that the Treasurer had been recommended to take, and [NOT FOR PUBLICATION] considering taking or had been recommended to take on that matter in Cabinet.

145. I am satisfied that there were reasonable grounds for Treasury’s claim under cl 2(1)(e) with respect to Document 2.

Documents 3A, 7A and 14A

146. It is convenient to consider Documents 3A, 7A and 14A together.

147. Treasury relies upon cll 2(1)(b) and (f).

148. The evidence concerning these documents is:

1. Document 3A is described in the Treasury Schedule as “CLEAN – Pasminco Cabinet Submission 18 June 2019”.

2. Document 3A:

1. was prepared before Cabinet’s deliberation [NOT FOR PUBLICATION];

2. was prepared by the DPIE and is titled “Cabinet Submission – [NOT FOR PUBLICATION];

3. is marked “Sensitive: NSW Cabinet”;

4. is on the NSW Government Cabinet Submission template. From its form and content and Mr Campbell’s experience preparing and reviewing Cabinet submissions, Mr Campbell understands that the document is a draft of a submission to Cabinet on [NOT FOR PUBLICATION]. Mr Campbell’s evidence is that the predominant purpose of a Cabinet Submission is for it to be submitted to Cabinet by a Minister for Cabinet’s consideration;

5. reveals the position that the Minister for Water, Property and Housing was considering taking and had been recommended to take in Cabinet;

6. is substantially the same as the Final Cabinet Submission [NOT FOR PUBLICATION]) considered by the Cabinet [NOT FOR PUBLICATION]. Whilst the final submission includes some additional clarifying information the recommendations between the draft and final versions are almost identical;

3. Document 7A is a revised version of Document 3A and is substantially identical to the Final Cabinet Submission [NOT FOR PUBLICATION] considered by the Cabinet [NOT FOR PUBLICATION];

4. Document 14A is the same as Document 3A and is an earlier version of Document 7A.

149. This evidence is capable of supporting a finding that Documents 3A,7A and 14A were drafts of the Final Cabinet Submission considered by the Cabinet [NOT FOR PUBLICATION]; and that the Final Cabinet Submission considered by the Cabinet [NOT FOR PUBLICATION] was prepared for the dominant purpose of its submission to Cabinet for Cabinet’s consideration. I am satisfied that there were reasonable grounds for Treasury’s claim under cl 2(1)(b) and (f) with respect to Documents 3A,7A and 14A.

Documents 3D, 7B and 14D

150. It is convenient to consider documents 3D, 7B and 14D together.

151. Treasury relies upon cll 2(1)(b) and (f).

152. The evidence concerning these documents is that:

1. Document 3D:

1. is described in the Treasury Schedule as “Attch A-Pasminco Cabinet Submission Attachment A background”;

2. is a draft a document which was prepared for the dominant purpose of its being submitted to Cabinet for Cabinet’s consideration. In particular, it is a draft of a document to be attached to the Cabinet Submission which provides additional background in relation to the Cabinet Submission;

3. discloses [NOT FOR PUBLICATION];

4. tends to reveal information concerning Cabinet’s decision and the position that [NOT FOR PUBLICATION] Minister was taking in Cabinet [NOT FOR PUBLICATION];

5. [NOT FOR PUBLICATION];

2. Document 7B is a revised version of Document 3D and shares the features of Document 3D described above;

3. Document 14D is a copy of Document 3D and is an earlier version of Document 7B; and

4. Document 3D was attached to Document 3A and is referred to in that document; Document 7B was attached to Document 7A and is referred to in that document; and document 14D was attached to Document 14A and is referred to in that document.

153. This evidence, taken together with the evidence concerning Documents 3A, 7A and 14A, is capable of supporting a finding that Documents 3D,7B and 14D were drafts of a document which was prepared for the dominant purpose of its being submitted to Cabinet (as an attachment to the Cabinet Submission). I am satisfied that there were reasonable grounds for Treasury’s claim under cl 2(1)(b) and (f) with respect to Documents 3D,7B and 14D.

Document 10

154. Document 10 is described in the Treasury Schedule as “RE: Highly Confidential Fwd: Cabinet in Confidence – Pasminco”.

155. Treasury relies upon cl 2(1)(e).

156. The evidence concerning Document 10 is that Document 10:

1. is a record of email correspondence between staff of the then Department of Planning, Department of Finance, Services and Innovation, Property NSW and Treasury. The emails appear to be dated between 17 and 25 June 2019. The subject line of the emails is “Cabinet in Confidence – Pasminco”;

2. was created before Cabinet’s deliberations [NOT FOR PUBLICATION];

3. was created for the purpose of consultation between the DPIE and Treasury on the draft Cabinet Submission prior to the Cabinet meeting [NOT FOR PUBLICATION];

4. includes Treasury consideration of the draft Cabinet Submission identifying potential issues with the proposal that had been prepared by the DPIE as well as questions to ask the DPIE for clarification. The draft submission referred to in Document 10 is the same as Document 3A;

5. tends to reveal the position which the Minister for Water, Property and Housing had been recommended to take and was considering taking in Cabinet, because the document discloses information which tends to reveal the contents of the proposed Cabinet Submission [NOT FOR PUBLICATION]; and

6. [NOT FOR PUBLICATION].

157. This evidence is capable of supporting findings that Document 10 was prepared before a Cabinet deliberation or decision on a matter, namely [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Water, Property and Housing had been recommended to take and was considering taking on this matter in Cabinet. I am satisfied that there were reasonable grounds for Treasury’s claim under cl 2(1)(e) with respect to Document 10.

Document 13

158. Document 13 is described in the Treasury Schedule as “RE: SENSITIVE: NSW CABINET – Pasminco_former smelter site_proposed legislation”.

159. Treasury relies upon cl 2(1)(e).

160. The evidence concerning Document 13 is that Document 13:

1. is a record of email correspondence between staff of Planning NSW, the DPC and Treasury and includes internal correspondence between Treasury officials. The emails are dated between 12 and 25 June 2019 and the subject line of the emails is “SENSITIVE: NSW CABINET – Pasminco – former smelter site – [NOT FOR PUBLICATION]”. The purpose of the correspondence was to provide information to the DPC on the intention to bring a proposal to Cabinet, including details of the proposal;

2. was created before Cabinet’s deliberation [NOT FOR PUBLICATION];

3. includes subsequent commentary by Treasury staff about the approach being proposed;

4. tends to reveal the position which the Minister for Water, Property and Housing [NOT FOR PUBLICATION] had been recommended to take and was considering taking in Cabinet. In particular, one of the emails contained a summary of the purpose of the proposed Cabinet Submission and reveals the matters in respect of which Cabinet’s approval was sought. It includes:

[NOT FOR PUBLICATION]; and

5. is part of the process of Cabinet agenda setting in which it is necessary for agencies to provide a proposal to the DPC in order to have items listed on the cabinet agenda.

161. In view of the proximity of the dates in the email with the information about the Cabinet proposal to the actual Cabinet consideration of this submission and Mr Campbell’s experience, Mr Campbell considers that the Minister would have given the Department in principle approval to proceed with the proposal in the terms set out in Document 13.

162. This evidence is capable of supporting findings that Document 13 was prepared before a Cabinet deliberation or decision on a matter, namely [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Water, Property and Housing had been recommended to take or was considering taking in Cabinet. I am satisfied that there were reasonable grounds for Treasury’s claim under cl 2(1)(e) with respect to Document 13.

Document 15

163. Document 15 is described in the Treasury Schedule as “RE: Pasminco-Cabinet Submission-SENSITIVE: NSW CABINET”.

164. Treasury relies upon cl 2(1)(e).

165. The evidence concerning Document 15 is that Document 15:

1. is a record of email correspondence between staff of the DPIE, Property NSW, Aspire Strategy and Treasury, including internal Treasury correspondence. The emails are dated 3 July 2019 and the subject line of those emails is “Pasminco – Cabinet Submission – SENSITIVE: NSW Cabinet”;

2. was created before Cabinet’s deliberations [NOT FOR PUBLICATION];

3. contains email correspondence the purpose of which was to relay internal Treasury views as to the draft Cabinet Submission which had been forwarded to Treasury in advance of consideration by Cabinet [NOT FOR PUBLICATION]. The draft submission referred to in Document 15 is the same as Document 7A;

4. tends to reveal the position which the Minister for Water, Property and Housing [NOT FOR PUBLICATION], had been recommended to take and was considering taking in Cabinet, because Document 15 discloses information which tends to reveal the contents of the proposed Cabinet Submission [NOT FOR PUBLICATION].

166. This evidence is capable of supporting findings that Document 15 was prepared before a Cabinet deliberation or decision on a matter, namely [NOT FOR PUBLICATION]; and that it reveals or tends to reveal the position that the Minister for Water, Property and Housing had been recommended to take or was considering taking on that matter in Cabinet. I am satisfied that there were reasonable grounds for Treasury’s claim under cl 2(1)(e) with respect to Document 15.

Treasury Document 4A

167. I turn now to consider Treasury Document 4A.

168. Treasury does not rely upon a Sch 1 consideration against disclosure for Treasury Document 4A. Hence, the Tribunal’s task is to consider and weigh in the balance:

1. the public interest considerations in favour of disclosure, which are unlimited and include:

1. the general public interest in favour of disclosure (s 12(1) GIPA Act);

2. the examples listed in the note to s 12(2) of the GIPA Act; and

2. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act. As noted above, Treasury relies upon the considerations set out in cll 1(f) and 4(d) of that table.

169. In undertaking this task, the Tribunal is entitled to take into account the ‘personal factors of the application’ described in s 55 of the GIPA Act as factors in favour of disclosure.

170. The Tribunal is also entitled to take into account the ‘personal factors of the application’ as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act. In the present case, Treasury does not rely upon cll 2, 3 or 5 of the table in s 14 of the GIPA Act, but does rely upon cl 4(d). It follows that the personal factors of the application may be taken into account as factors against disclosure of the information sought by the applicant only when considering whether disclosure of the information could reasonably be expected to have the effect described in cl 4(d).

171. The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].

Evidence

172. The evidence concerning Treasury Document 4A was provided by Mr Hurley. The evidence of Mr Hurley in his two statements may be summarised as follows:

1. he is the Managing Director of Endeavour Holdings Australia Pty Ltd, which trades as Aspire Strategy;

2. Aspire Strategy provides consultancy services and in particular in connection with the negotiation of large, complex or sensitive projects and transactions;

3. Aspire Strategy was retained by Property NSW to assist with:

1. negotiations between the NSW Government (Property NSW, the Environmental Protection Authority, the DPIE and the DPC) and the Administrators concerning the Site;

2. negotiations with parties interested in purchasing parts of the Site, up to and including finalising the terms of any sale;

4. he is authorised by the HCDCC to provide evidence to the Tribunal concerning Treasury Document 4A;

5. Treasury Document 4A:

1. is a draft valuation report dated 20 March 2019, created by Charter Keck Cramer, a firm which among other things provides real estate valuation advice;

2. was received by Mr Hurley on 30 April 2019 on a confidential basis;

3. was created for the purpose of providing advice to the negotiation team about the possible value of the Site;

4. contains a valuation of the whole Site other than the land on which the containment cell is located;

5. contains an assessment of the value of the Site based on certain assumptions;

6. disclosure of the information contained in Treasury Document 4A is likely to prejudice the business, commercial or financial interests, and effective operation of the functions of the HCCDC because:

1. the HCCDC’s functions include selling parts of the Site; placing the proceeds of sale into the Fund; and using the Fund to monitor, maintain and repair the containment cell and associated infrastructure;

2. Treasury Document 4A values parts of the Site that are under negotiation for sale;

3. disclosure of a valuation obtained by the HCCDC would likely set an upper limit on the price that could be obtained by the HCCDC as buyers would not wish to spend more than the amount indicated in the valuation. This effect is more pronounced for a sale by direct dealing (where the land is not made available for sale to the public) than for an open market sale (where the land is made available for sale to the public);

4. if a lower price were to be obtained, this would mean that a lower amount would be paid into the Fund, directly affecting the ability of the HCCDC to effectively exercise its functions of managing the Site (including the containment cell); and

7. whilst Treasury Document 4A is dated 20 March 2019, the considerations and analysis contained in it remain relevant to the sales process as there have been no substantial changes in the market.

173. Mr Hurley also gave evidence as to the possible redaction of ‘sensitive’ parts of Treasury Document 4A. In his statement his evidence was:

1. redaction could occur ‘in theory’ but ‘nothing of any relevance’ would remain;

2. the most sensitive parts of Treasury Document 4A are:

1. the valuation figures and conclusions (pages 32 to 38);

2. details as to other land which the valuer considers comparable to the land the subject of the valuation (pages 21 to 31);

3. the assumptions on pages 1,2,12,14 and 15;

4. the SWOT Analysis on page 21; and

3. the market considerations addressed at pages 16-20 would also reveal part of the basis upon which the HCCDC was approaching the negotiations and thus disclosure of this information would also be prejudicial.

174. In his evidence in chief, Mr Hurley withdrew his evidence concerning the sensitivity of assumptions on pages 2,12 and 14; and of the SWOT Analysis on page 21.

175. In cross-examination, Mr Hurley:

1. agreed that the assumptions on pages 2,12 and 14; and the SWOT Analysis on page 21 could be released without redaction;

2. agreed that the material which he contended should be redacted was limited to:

1. the valuation figures and conclusions (pages 32 to 38). He also said that the most sensitive material was the dollar figures for the valuation, and he would be very concerned about such disclosure;

2. details as to other land which the valuer considers comparable to the land the subject of the valuation (pages 21 to 31);

3. the assumptions on pages 1 and 15;

4. the market considerations addressed at pages 16 to 20;

3. said that he received Treasury Document 4A as a draft and he was not aware whether it had been finalised;

4. agreed that some sales might not occur until late 2021 in which case the valuation would be more than 2.5 years old; and

5. maintained his view that there had been no substantial changes in the market since April 2019.

176. In re-examination, Mr Hurley indicated that the description of the land in the Site was not sensitive, but the methodology used, and the valuation figures reached were. He also indicated that the ‘names of parties’ and ‘inaccuracies’ may be sensitive.

Considerations in favour of disclosure

177. The applicant has submitted that the following are considerations in favour of disclosure.

178. First, the general public interest in favour of disclosure provided for in s 12 of the GIPA Act.

179. Secondly, that disclosure of the information in Treasury Document 4A could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

180. Thirdly, disclosure of that information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

181. I accept that these are all public considerations in favour of disclosure, particularly in circumstances where the HCCDC has been charged with the sale of parts of the Site and with the long term management of the Fund and of the Site.

Considerations against disclosure

Public interest considerations against disclosure

182. Treasury relies upon cll 1(f) and 4(d), which provide that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect of prejudicing:

1. the effective exercise by an agency of the agency’s functions, whether in a particular case or generally (cl 1(f)); and

2. any person’s legitimate business, commercial, professional or financial interests (cl 4(d)).

183. The HCCDC is the relevant ‘agency’ for the purposes of cl 1 (f) and the relevant ‘person’ for the purposes of cl 4(d).

184. Treasury has submitted in essence that:

1. each of these public interest considerations against disclosure is made out on the basis of Mr Hurley’s evidence and in particular that disclosure would be likely to reduce the sale price achieved for parts of the Site, thereby reducing the amounts available for the Fund and the ongoing management of the Site by the HCCDC;

2. Manning v Bathurst Regional Council [2018] NSWCATAD 132, in which a decision not to release certain information relating to a valuation on the basis of cl 4(d) was affirmed, supports its position;

3. nothing in the Second Reading Speech affects the submissions it has made; and

4. access should be refused to the whole of the Treasury Document 4A because the state of the document after redaction would mean that it would be of no use to the applicant, and consistently with s 3(2) of the GIPA Act, Treasury should not be put to the costs of such redaction.

185. The applicant has submitted in essence that:

1. the evidence of Mr Hurley demonstrates that parts of the document can and should be released;

2. those parts (at least) should be released, utilising s 74 of the GIPA Act as there is no basis in the GIPA Act for withholding them;

3. as to the parts claimed by Mr Hurley as sensitive:

1. Mr Hurley is not independent of Treasury and his firm is in a contractual relationship with the New South Wales Government;

2. no employee of Treasury or the HCCDC gave evidence;

3. the valuation is only a draft and was prepared in April 2019, prior to the acquisition of the Site and significant time has passed since then with changes to the economy;

4. the valuation may be 2.5 years old when some sales are made;

5. Manning v Bathurst Regional Council does not assist Treasury;

6. the Tribunal should consider whether the information in the Second Reading Speech undermines the evidence given by Mr Hurley; and

7. generally, Treasury has not discharged its onus.

Personal factors of the application

186. The applicant does not rely upon any personal factors of the application as favouring disclosure and Treasury does not rely upon any such factors as factors against disclosure.

Consideration

187. Each of cll 1(f) and 4(d) includes the phrase ‘… could reasonably be expected [to have a particular effect] …’. The principles to be applied in considering whether disclosure of information ‘could reasonably be expected’ to have a particular effect were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows:

There was no dispute between the parties that:

…

(2)   The words ‘could reasonably be expected’ are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] –

... when their Honours said, as they did, that the words required a ‘judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous,’ to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, ‘to place an unwarranted gloss upon the relatively plain words of the Act.’

(3)   In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22].

(4)   It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].

(5)   ’Prejudice’ is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

(6)   The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26].

188. Whether disclosure of particular information ‘could reasonably be expected to’ have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].

189. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]:

[54]   Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on ‘logically probative material’, and not on ‘mere suspicion or speculation’, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (‘Pochi’) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (‘Sullivan’) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83]   Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on ‘logically probative material’: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].

190. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]:

Based on these authorities when considering the evidence on which it is asserted that disclosure ‘could reasonably be expected’ to have a particular effect, the following principles should be kept in mind:

(1)   a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2)   there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3)   prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

191. I turn now to consider the various parts of Treasury Document 4A, as identified by Mr Hurley.

Valuation figures and conclusions (pages 32 to 38)

192. I am satisfied that disclosure of the valuation figures and conclusions (pages 32-38) could reasonably be expected to have the effect of prejudicing the effective exercise by the HCCDC of its functions within cl 1(f). This is because:

1. the HCCDC’s functions include the sale of parts of the Site, the management of the proceeds of sale within the Fund and the use of the Fund to maintain the Site including the containment cell;

2. those functions will be prejudiced if the proceeds of sale are reduced; and

3. based upon Mr Hurley’s evidence, which I accept, that in his experience, disclosure of the valuation figures and conclusions is likely to adversely affect the sale price that may be achieved.

193. I have taken into account the applicant’s submissions concerning the age of the valuation. However, this does not change the conclusion I have reached for the following reasons. First, Mr Hurley was not moved on his evidence that the market has not changed and I accept that evidence. Secondly, even if there had been market movements, the valuation provides a value at a particular date and that value could readily be adjusted using information as to market movements since that date to produce an indicative valuation at a later date.

194. My conclusion is also not affected by the fact that the valuation is a draft. There is no evidence before the Tribunal which would support a conclusion that it would be treated by potential purchasers any less seriously than a final valuation and Mr Hurley’s evidence as to the effect on disclosure of this information to potential buyers was based upon, and not qualified by, the fact that it is a draft.

195. I also do not discount Mr Hurley’s evidence by reason of the fact that his firm is engaged by the New South Wales Government. It was not suggested to Mr Hurley that his evidence was affected by such a relationship. Further, Mr Hurley gave his evidence in a manner which, as described above, involved a number of (appropriately made) concessions against the interests of Treasury.

196. I do not consider the absence of a witness from Treasury or the HCCDC to be of any moment. Mr Hurley, by dint of his role, was able to address the relevant issues.

197. I have considered the effect of the information contained in the Second Reading Speech (paragraph [16] above) upon the evidence given by Mr Hurley as to the likely effect of the disclosure of the information on pages 32 to 38 and I have concluded that it does not affect the evidence given by Mr Hurley. The effect of the information contained in the Second Reading Speech is that the value of the land surrounding the containment cell and zoned for residential, business or industrial purposes was unlikely to exceed $67 million. A potential purchaser, armed with that knowledge, it is unlikely to make a bid in excess of $67 million.

198. If the potential purchaser were to have access to the information in pages 32 to 38, then it would be aware [NOT FOR PUBLICATION].

199. I have also considered the Tribunal’s decision in Manning v Bathurst Regional Council, but derive from it little assistance for either the applicant or Treasury, as it, and the present case, turn on their own facts.

200. For all the reasons set out above, I am satisfied that disclosure of the information on pages 32 to 38 could reasonably be expected to have the effect of the prejudicing the effective exercise of HCCDC’s functions (cl 1(f)) and of prejudicing its legitimate business, commercial or financial interests (cl 4(d)).

Details as to other land which the valuer considers comparable to the land the subject of the valuation (pages 21 to 31)

201. I am not satisfied that the disclosure of this information could reasonably be expected to have either of the effects described in cll 1(f) and 4(d).

202. The only basis suggested for such effects to be the likely result of disclosure is that described above, namely the likely reduction in funds available for deployment from the Fund as a result of potential purchasers using the disclosed information to form a view that they need not bid above a particular amount. Whilst Mr Hurley did refer to some information as being ‘sensitive’, the basis or bases for such sensitivity remained unexplained, as did the connection between disclosure of that information and the existence of a reasonable expectation of the particular effects described in cll1(f) and 4(d).

203. [NOT FOR PUBLICATION]

The assumptions on pages 1 and 15

204. The assumptions on page 1 are [NOT FOR PUBLICATION]

205. I am not satisfied that disclosure of these assumptions could reasonably be expected to have either of the effects described in cll 1(f) and 4(d).

206. As noted above, the only basis suggested for such effects to be the likely result of disclosure is the likely reduction in funds available for deployment from the Fund as a result of potential purchasers forming a view based on the valuation that they need not bid above a particular amount. It is not apparent that the disclosure of these assumptions could have such a result.

207. The assumptions on page 15 are [NOT FOR PUBLICATION].

208. For the same reasons set out for the assumptions on page 1, I am not satisfied that disclosure of these assumptions could reasonably be expected to have either of the effects described in cll 1(f) and 4(d).

The market considerations addressed at pages 16-20

209. I am not satisfied that disclosure of this information could reasonably be expected to have either of the effects described in cll 1(f) and 4(d).

210. It is not apparent that disclosure of this information would likely result in a reduction in funds available for deployment from the Fund as a result of potential purchasers using the disclosed information to form a view that they need not bid above a particular amount.

211. As noted above, Mr Hurley suggested that disclosure would reveal part of the basis upon which the HCCDC was approaching the negotiations and that such disclosure would be prejudicial. However, the particular basis has not been identified, the nature of the prejudice is not explained and there is no explanation as to how disclosure could reasonably be expected to have the effects described in cll 1(f) and 4(d).

The assumptions at pages 2, 12 and 14 and the SWOT Analysis

212. Mr Hurley’s evidence was that this information could be disclosed. In any event, I am not satisfied that it could reasonably be expected that disclosure of this information would have the effects mentioned in cll 1(f) or 4(d).

213. Thus, I am satisfied that the public interest considerations against disclosure in cll 1(f) and 4(d) are made out with respect to pages 32 to 38 of the Treasury Document 4A, but not otherwise.

214. I turn to consider whether those public interest considerations against disclosure of pages 32 to 38 outweigh the public interest considerations in favour of disclosure of those pages, and which are discussed above. Whilst the public interest considerations in favour of disclosure should be given considerable weight, in my view they are outweighed by the public interest considerations against disclosure of pages 32 to 38.

215. Accordingly, the Treasury Decision with respect to Treasury Document 4A should be affirmed only with respect to pages 32-38.

Orders

216. The Tribunal makes the following orders:

1. In proceeding 2020/00023608 (Fiddletown Investments Limited v Department of Premier and Cabinet & Premier of New South Wales):

1. the decision of the Department of Premier and Cabinet (DPC) dated 12 November 2019 is varied such that documents 5, 6, 8 and 16 are released to the Applicant, subject to redaction;

2. the implied decision of the DPC that it does not hold any further information is remitted to the DPC pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration of that decision and:

1. DPC is to affirm the decision, vary the decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the Administrative Decisions Review Act 1997, and to provide reasons, both to the applicants and the Tribunal, within 28 days of the date of these Reasons;

2. the applicant is to inform the Tribunal and DPC whether it wishes to proceed with, or withdraw, the application for review, within 42 days of the date of these Reasons;

3. if the Applicant decides to proceed with its application for review, it is to request the Registry to relist the matter for directions when it informs the Tribunal of its decision in accordance with Order (1)(d) above;

3. the decision of DPC is otherwise affirmed in relation to Documents 1-4, 7, 9-15 and 17-20;

2. In proceeding 2020/00032207 (Fiddletown Investments Limited v New South Wales Treasury & Premier of New South Wales):

1. the decision of NSW Treasury dated 22 November 2019 is varied to the following effect:

1. Document 4A, other than pages 32 – 38, is released to the Applicant;

2. Documents 4B, 4C, 14B and 14C are released to the Applicant;

3. Documents 14A and 14D are withheld on the basis that there are reasonable grounds for concluding that there is an overriding public interest against disclosure of the information because it is Cabinet information;

2. the decision of NSW Treasury is otherwise affirmed in respect of Documents 2, 3A, 3D, 4A, 7A, 7B, 10, 13, 14A, 14D and 15.

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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: 02 February 2021