Fitzpatrick v NSW Office of Liquor and Gaming - [2010] NSWADT 72

No judgment structure available for this case.

CITATION: Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: General Division

PARTIES:
APPLICANT
David Fitzpatrick
FIRST RESPONDENT
NSW Office of Liquor and Gaming
SECOND RESPONDENT
Greyhound Racing NSW

FILE NUMBER: 083360; 083361

HEARING DATES: 8, 9, and 10 June 2009

SUBMISSIONS CLOSED: 17 December 2009

DATE OF DECISION:
19 March 2010

BEFORE: Molony P - Judicial Member

CATCHWORDS: Freedom of Information Act 1989 – cabinet documents – executive council documents – legal professional privilege – documents affecting business affairs –internal working documents – confidential information - operations of agencies

LEGISLATION CITED: Greyhound Racing Act 2002
Greyhound Racing Act 2009
Harness Racing Act 2002
Thoroughbred Racing Act 1996
Greyhound and Harness Racing Administration Act 2004
Racing Administration Act 1998
Totalizator Act 1997
Betting Control Act 1954 (WA)
Racing Administration Amendment (Publication of Race Fields) Regulation 2008
Racing Administration Regulations 2005
Freedom of Information Act 1989
Administrative Decision Tribunal Act 1997
Freedom of Information Act 1982 (Cth)
Evidence Act 1995

CASES CITED: Ashfield Municipal Council v RTA [2004] NSWSC 917 Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180
AWB v Cole [2006] FCA 1234
Betfair Pty Limited v Western Australia [2008] HCA 11
Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140
Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141
Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7
Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33
Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FCT v Pratt Holdings (2004) 136 FCR 357
General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84
Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39
Hawker v Premier's Department unreported, District Court, NSW, Urguhart J, 17 December 1990
Howell v Macquarie University [2008] NSWCA 26
IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79
Macquarie University v Howell [2009] NSWADTAP 12
Mann v Carnell (1999) HCA 66
McGuirk v University of New South Wales; University of New South Wales v McGuirk [2009] NSWCA 321
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
McMahon v Director General, Department of Fair Trading [2003] NSWADT 164
Ministry of Transport [2007] NSWADT 236
National Parks Association of New South Wales Inc v Department of Lands [2005] NSWADT 124
Osland v Department of Justice [2008] HCA 37
Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277
Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279
Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588
Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11
State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160
Waite v Hornsby Shire Council [2007] NSWADT 265

REPRESENTATION:
APPLICANT
R Niall, barrister
FIRST RESPONDENT
K Groshinski, solicitor
SECOND RESPONDENT
A Johnson, solicitor

ORDERS: On file 083360 vary the decision made on internal review to determine that 30 days after the publication of these reasons the Applicant have documents 1, 2 and 3.On file 083361 vary the decision made on internal review to determine that 30 days after the publication of these reasons the Applicant have:a. Partial access to documents 13, 14, 15, 17, 23 and 43.b. Access to documents A1, A2, A3, 2, 3, 5, 7, 10, 19, 20, 25B and 42.

REASONS FOR DECISION

Background

1 Greyhound racing is one of three racing codes in New South Wales: greyhound racing, harness racing and thoroughbred racing. The department responsible for government oversight of the racing industry and the development of policy is the NSW Office of Liquor Gaming and Racing (OLGR).

2 Greyhound Racing New South Wales (GRNSW) is a body corporate established by section 6 of the Greyhound Racing Act 2002 (the GRA). That Act has since been repealed and replaced by the Greyhound Racing Act 2009, although all the actions and decisions taken by GRNSW to which these matters relate took place under the GRA.

3 The GRA provided by section 7 that GRNSW did not represent the Crown, was not subject to direction or control by the Government, and could not render the State liable for any of its debts or obligations, unless express legislative provision was made to the contrary. The membership of GRNSW was provided for by section 8. It was essentially representative, with various industry bodies and groups, such as clubs and the industry, able to nominate specified members to GRNSW, with an independent Chair. The functions of GRNSW were set out in section 10:

‘(1) GRNSW has the functions conferred or imposed on it by or under this or any other Act or law.
(2) Without limiting subsection (1), the functions of GRNSW include the following:
(a) to register greyhound racing clubs and greyhound trial tracks,
(b) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the greyhound racing industry in the State,
(c) to distribute money received as a result of commercial arrangements required by the Totalizator Act 1997 ,
(d) to allocate the dates on which greyhound races may be conducted,
(e) to develop and review policy in relation to the breeding and grading of greyhounds.
(3) GRNSW may affiliate with such organisations, whether in or out of New South Wales, as GRNSW considers appropriate.
(4) Nothing in this Act confers on GRNSW power to conduct meetings for greyhound racing on its own behalf.’

4 GRNSW did not regulate the integrity of greyhound racing or conduct racing meetings.

5 The other racing bodies in NSW are Harness Racing New South Wales (HRNSW), established under the Harness Racing Act 2002, and Racing New South Wales (Racing NSW), established under the Thoroughbred Racing Act 1996. They have similar functions to GRNSW for their respective codes of racing (although Racing NSW is also responsible for regulatory matters in the thoroughbred racing industry). The integrity of greyhound and harness racing was the responsibility of the Greyhound and Harness Racing Regulatory Authority (‘GHRRA’) a body corporate created by the Greyhound and Harness Racing Administration Act 2004 (since repealed). Licensed racecourses and betting are regulated under the Racing Administration Act 1998.

6 The racing industry in New South Wales is primarily funded by the totalisator betting operations of TAB Limited in NSW, which has an exclusive off course totalisator licence under the Totalizator Act 1997 and, with racing clubs, an exclusive on course totalisator licence. Totalizator or starting price betting ‘involves the determination of dividends in respect of a particular event by reference to the size of the betting pool (less the commission charges of the operator) and the number of successful bets’: Betfair Pty Limited v Western Australia [2008] HCA 11 at [55]. There is therefore no risk to the totalizator.

7 That funding occurs through a number of commercial arrangements between TAB Limited and NSW Racing Pty Ltd (Racingcorp), which was established as a joint vehicle for the three racing codes to participate in those arrangements with TAB Limited. Those commercial arrangements are embodied in an agreement called the Racing Distribution Agreement (‘RDA’). That agreement has been amended or varied by the following arrangements:

Collectively these are referred to as ‘the consolidated RDA.’

8 The distribution of that revenue between the racing codes is governed by an agreement between the codes called ‘the intercode agreement’. The revenue GRNSW receives from TAB Limited, via Racingcorp, under the intercode agreement is the most significant source of revenue for greyhound racing in NSW.

9 Among the provisions of the consolidated RDA are those related to a Business & Strategy Committee, an advisory Committee established which involves regular meetings between representatives of Tabcorp and Racingcorp, including the racing codes, to discuss their mutual business.

10 The government also receives substantial revenue through the regulation of betting under the Racing Administration Act 1998.

11 The TAB was initially in public ownership but its operations were privatised in 1997 as TAB Limited. When this occurred the RDA was made public. In 2004 TAB Limited was acquired by Tabcorp Holdings Limited (Tabcorp) following a public offer.

12 With the development and growth of internet and telephone wagering operators outside the State, offering wagering on NSW racing, concerns grew within government and the racing industries about revenue loss. The use of interstate wagering operators, who were not subject to the same commercial arrangements as TAB Limited had with Racingcorp, and who were not subject to the same regulatory requirements as those conducting wagering within the State, posed a significant threat to the existing revenue streams.

13 In November 2004, the Minister for Racing and Gaming tabled a report in Parliament recommending amendments to certain Acts, including the Racing Administration Act 1998. Following the report, the Department took steps to amend the Racing Administration Act 1998 (the RAA). It prepared Ministerial submissions, a draft Cabinet minute, and took legal advice on the issues involved. The Minister asked the Department to consult the racing control bodies in relation to proposed amendments and a series of meetings were held during the process of development with a working party consisting of senior officers of each of the controlling bodies and officers of OLGR .The codes made various submissions to the Minister with respect to appropriate regulation.

14 The Racing Legislation Amendment Act 2006 was introduced in October 2006 and was assented to on 21 November 2006. It introduced a new Division 3 Part 4 to the RAA, which related to the publication of information concerning NSW racefields: i.e. information that identifies the name or number of a horse or greyhound entered into, withdrawn, or scratched from a race at a licensed racecourse in NSW (see section 27 of the RAA). A wagering operator was not to use racefields information unless authorised under the Regulations (section 32A and 33). The prohibition on publication and communication extended to accepting a bet referring to such information. Authorisation was to be conferred by the relevant race control body (section 33A) upon approval and the payment of fees.

15 That legislation was similar too, but not the same as, legislation passed in some other States. Western Australia’s response, among other things, prohibited the publication of WA racefields without approval by persons, including those in Western Australia "or elsewhere." who act as a bookmaker, conduct betting by the operation of a totalisator, or operate a betting exchange (section 27D(1) of the Betting Control Act1954 (WA).

16 The Minister authorised the formulation of a working party to assist in the development of the Regulations to be promulgated under the RAA (‘the working party’). Representatives of the racing control bodies were invited to take part. Legal advice was sought from the Crown Solicitor's Office and drafting instructions given to Parliamentary Counsel. Much of the mechanics and actual working of the scheme would depend on the regulations.

17 In March 2007 the High Court, in Betfair Pty Limited v Western Australia [2008] HCA 11, held that section 27D(1) of the Betting Control Act1954 (WA) was invalid to the extent that it applied to prevent Betfair (a licensed Tasmanian betting exchange) from:

18 In the same month the Minister commissioned Mr Alan Cameron AM to conduct an independent review of wagering in NSW, to consider reforms to the industry and ‘provide a framework for future growth and sustainability.’ In March 2008 Mr Cameron published an issues paper – Independent review of wagering in NSW – a framework for future growth and sustainability of the NSW Racing Industry (‘the issues paper’). This was followed in June 2008 by a Wagering Background Paper (‘the background paper’).

19 Racing NSW commissioned the Boston Consulting Group to prepare a response to the review which is dated 31 July 2008 (‘the BCG report’). GRNSW and HRNSW engaged BIS Shrapnel to prepare a report for them entitled Revenue Outlook for TAB Limited (‘the BIS report’). In November 2008 Mr Cameron delivered his report (‘the Cameron report’).

20 The work of the working party continued. Following the Betfair decision further legal advice was obtained with respect to the impact of that decision on the NSW regime.

21 The Racing Administration Amendment (Publication of Race Fields) Regulation 2008 amending the Racing Administration Regulations 2005 commenced on 1 July 2008.

22 On 21 July 2008, the Applicant made an application under the Freedom of Information Act 1989 (the FOI Act) to OLGR for access to the following documents:

Betfair v Western Australia

.

23 On 22 September 2008, Mr Frank Marzic of the Office of Liquor, Gaming and Racing ("OLGR") determined that application, granting access to some documents, but refusing access to most of the documents falling within the scope of the application. An internal review application was made on 10 October 2008 (received on 14 October 2008) and determined on 27 October 2008.

24 The Applicant then filed an external review application with the Tribunal. Further documents were released after the institution of proceedings. Access to 42 documents remains in issue.

25 On 21, 23 and 29 July 2008 the Applicant made an application under the FOI Act to GRNSW seeking, among other things, access to:

26 GRNSW identified the following documents in its possession which fell into the above categories:

);

;

27 GRNSW determined that the requested documents were exempt under the FOI Act and informed the Applicant by way of letters dated 1 September 2008 and 22 September 2008 of that decision.

28 The Applicant sought internal review of GRNSW's decision that the documents were exempt from disclosure under the FOI Act. That internal review was conducted on 14 October 2008. GRNSW determined that the documents were exempt from disclosure and should not be released under the FOI Act.

29 The Applicant then filed an external review application with the Tribunal. Access to 6 documents remains in issue.

The Legislative Context

30 In considering applications under the FOI Act it is necessary to bear in mind the objects and context of the Act. Section 5 provides that the objects of the Act are to extend as far as possible the rights of the public to obtain access to information held by the Government. The means chosen by the Act to achieve these objects include the conferral of a legally enforceable right to access to documents held by Government agencies "subject only to such restrictions as are reasonably necessary for the proper administration of the Government".

31 The Act is remedial legislation, whose objects reflect a Parliamentary intention that good governance is advanced by openness and accountability, and, an informed public. Section 5(3) provides that it is the intention of Parliament that the FOI Act be interpreted and applied so as to further the objects of the Act. Section 16 gives a person a legally enforceable right to be given access to an agency's documents in accordance with the Act. Section 24 requires the agency to make a determination as to whether access should be granted or refused.

32 In refusing access, section 25 requires the agency to give access to a copy of the document from which exempt matters has been deleted provide it is practicable to do so and the applicant wishes to have such a copy.

33 In this case the Applicant, in the event that one or more documents are found to be exempt, seeks to have access to an edited document.

34 Importantly, section 61 of the FOI Act provides that the burden of establishing that a determination is justified lies on the agency.

35 Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

36 When considering reviews under the FOI Act, section 55 of that Act provides that the Tribunal is ensure in its reasons that it does not disclose exempt matter and ‘where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.’

37 In these cases, there is a substantial overlap between the two applications for external review. With the consent of the parties orders were made that both applications be heard together, with evidence in one being evidence in the other. The hearing took place from 9 to 11 June 2009, when I reserved my decision.

38 Subsequently, OLGR sought an opportunity to make further submissions consequent on the decision of the Full Federal Court in State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 and the NSW Court of Appeal decision in McGuirk v University of New South Wales; University of New South Wales v McGuirk [2009] NSWCA 321 (the "2009 McGuirk decision"). I asked the Registrar to advise OLGR to seek the Applicant’s views on this request, but no response was forthcoming from the Applicant.

39 As a result I determined to give both OLGR and the Applicant an opportunity to make submissions arising from those decisions. OLGR’s further submissions were to be filed and served by 30 November 2009, with any submissions in reply form the Applicant to be filed and served by 14 December 2008.

40 Only OLGR has filed submissions.

Documents in Issue

41 It is convenient to discuss the documents in contention by grouping them under the exemptions claimed to apply to them. These are found in Sch 1 to the Act. While this necessarily involves some duplication, as more than one exemption is claimed for many of them, it provides a coherent means of addressing the issues raised.

42 The documents in issue are more fully described in the schedules of documents not released prepared by GRNSW and OLGR. Exemptions are claimed under five categories, which include claims of exemption under Part 1 of Sch 1 in relation to restricted documents by OLGR. Insofar as restricted documents are concerned the Premier, as Minister administering the FOI Act, is a party to the proceedings and has made submissions adopting the position taken by OLGR with respect to those documents.

43 The following exemptions are claimed.

44 The agencies relied upon evidence from four witnesses, three of whom were available for cross-examination. They were:

45 Part 1 of Schedule 1 relates to restricted documents (see the definition of restricted document in section 4). It includes exemptions relating to cabinet documents (clause 1) and executive council documents (clause 2). Section 57 makes specific provisions with respect to the consideration of restricted documents. It provides:

46 In this case, notice was given to the Premier, as the Minister administering the Act. He has filed submissions supporting OLGR’s position in relation the restricted documents.

47 There is no Ministerial certificate to which ss (1) apples. The Tribunal is therefore free to consider the grounds on which the claims of exemption are made.

48 The Tribunal’s role when carrying out that task was clarified by the Appeal Panel in IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79. In such circumstances section 57 requires that the Tribunal determine whether it is satisfied that there are ‘reasonable grounds for the claim’ of exemption. If so satisfied, the Tribunal’s inquiry is to go no further. If not so satisfied, after considering the document, the Tribunal is to reject the claim. As the Appeal Panel pointed out in IPART (at [42]) this procedure does ‘not permit the Tribunal to engage in full merits review.’ As a result there is ‘no scope’ for the Tribunal to exercise its residual discretion with respect to such reviews: IPART at [46].

49 The Appeal Panel in IPART followed the decision of the High Court in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423. There the High Court considered the role of the Commonwealth AAT when reviewing a Ministerial Certificate to the effect that disclosure would be against the public interest. Section 58(5) under the Freedom of Information Act 1982 (Cth) provided that the Tribunal was to determine ‘whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.’ Hayne J, said, at [55]:

‘…Its task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to the public interest?’

50 At [63] he said:

‘In deciding whether reasonable grounds exist for a claim, the Tribunal must take account of any relevant evidence that has been adduced and of any relevant arguments that have been advanced. It must consider the particular claim that has been made and that will require consideration (and commonly the examination) of the particular documents that are in question.’

51 Heydon and Callinan JJ agreed. At [131] they said:

‘…. It does follow, as the majority in the Full Court effectively held, that if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review. It is important to notice that the statutory language does not give an entitlement to access if there are, as often there may very well be, reasonable grounds for the revelation of the document in the public interest. It further follows that the Tribunal is not obliged to undertake a balancing exercise of the kind the appellant submits it was bound to do. The role of the Tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review of the kind contemplated by section 43(1) of the AAT Act. Whether therefore, the only practical and real means of attacking a conclusive certificate will be by demonstrating that there are no reasonable grounds in fact, or that the grounds relied on are so unreasonable that no reasonable person could hold the opinions upon which they are based, does not arise for decision in this appeal.’

52 In this case that burden requires the agency to establish that there are reasonable grounds for the claim that the documents in question are exempt cabinet documents or executive council documents.

53 Clause 1 provides:

54 Clause 2 concerns Executive Council documents and provides:

55 There are substantial similarities between the clauses.

56 With respect to clause 1(1)(a) the parties submissions were at odds as to the degree to which a document must be prepared for submission to cabinet. OLGR submitted that it is ‘enough if submission to Cabinet is one of the purposes for which it was prepared. (Hawker v Premier's Department unreported, District Court, NSW, Urguhart J, 17 December 1990; Simos v Wilkins at 10); Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [35] per O'Connor P, National Parks Association of New South Wales Inc v Department of Lands [2005] NSWADT 124 at [26]).’ The Applicant, relying on a decision by the Victorian Court of Appeal in Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 with respect to similar Victorian provisions, argued that ‘it is necessary that the dominant or operative purpose for the preparation of the document is that it be submitted to Cabinet.’ The chain of authorities in NSW do not put the purpose test that high, with the necessary connection being that submission to cabinet is one of the purposes for which the documents was prepared (National Parks Assn of New South Wales Inc v Department of Lands) and not a ‘peripheral purpose’ (Ministry of Transport [2007] NSWADT 236 at [43]).

57 OLGR made the following submissions with respect to the documents in issue:

McGuirk v Director General, The Cabinet Office,

Cianfrano v Department of Premier and Cabinet

58 In support of those submissions, under section 57(2), OLGR relied on the confidential affidavit of Mr Marzik, which addressed issues concerning the preparation and use of those documents. Based on Mr Marzik’s confidential evidence OLGR submitted that there were reasonable grounds for the claim that documents A5, A6, A7 and A9 are exempt cabinet documents, and that its document numbered 38 is an exempt executive council document.

59 Having read Mr Marzik’s affidavit I accepted those submission and found that his affidavit disclosed reasonable grounds for the exemptions claimed. The exceptions in clauses 1(2) and 2(2) did not apply. In the light of those conclusions, in accordance with section 57(3), I did not require the documents to be produced in evidence.

60 As a result I have not considered the other exemptions claimed in respect of those documents not produced.

61 Clause 10 provides:

62 In considering claims for exemption based on legal professional privilege under clause 10 of the FOI Act the Appeal Panel found that the common law test, rather than the client legal privilege provisions of the Evidence Act 1995 applies: Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26. The Appeal Panel explained at [9]:

Evidence Act

1995

production in legal proceedings

Part 3.10

Evidence Act

1995

Esso Australia Resources Ltd v Commissioner of Taxation

[1999] HCA 67

;

Evidence

Act

63 In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal proceeded on the basis that the common law of legal professional privilege rather than the client legal privilege provisions under the Evidence Act applied to clause. 10, noting (at [41]) that this approach had been adopted by the Appeal Panel.

64 Since those decisions were made the Evidence Act 1995 has been amended by the Evidence Amendment Act 2007 which made substantial changes to the provisions dealing with client legal privilege, found in Division 1 of Part 3.10, with effect from 1 January 2009. This includes the introduction of a new s 131A in Division 4 of Part 3.10, which provides:

disclosure requirement

65 The Dictionary to the Evidence Act 1995 contains the following definitions:

66 This Tribunal ‘is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice’: s 75(2) ADTA. As a consequence it is not a court to which s 131A of the Evidence Act 1995 applies in the course of its own proceedings and procedures.

67 That, however, is not the end of the matter. All parties submitted and I agree, that for the purposes of clause 10, following the amendments made by Evidence Amendment Act 2007, the test for whether a document would be "privileged from production in legal proceedings on the ground of legal professional privilege" in proceedings in NSW courts, is now determined by the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 and not by the common law of legal professional privilege. This is so whether one is considering the adduction of evidence (to which the repealed provisions of the Evidence Act 1995 applied) or the acquisition of evidence by compulsory disclosure processes, such as summons and discovery ((to which the repealed provisions did not apply).

68 Thus, consistently with the reasons of the Appeal Panel in Director General, Attorney General's Department v Cianfrano, the task of an officer of an agency, when considering an exemption under clause 10, is to is to make up his or her own mind, on the basis of such information as is available, about whether the matter contained in a document has characteristics that would make it privileged from production in legal proceedings on the ground of client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995. (cf Howell v Macquarie University [2008] NSWCA 26 per Campbell JA at [54]). The same task confronts the Tribunal on review.

69 Section 118 of the Evidence Act 1995 provides:

70 A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].

71 Section 117 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides:

client

confidential communication

confidential document

lawyer

72 In AWB v Cole No 5 [2006] FCA 1234 Young J summarised the relevant principles at [44]. It is established that the privilege attaches to advice on the operation and application of laws, proposed laws, and their drafting, including advice given by parliamentary counsel in relation to the drafting and preparation of bills: General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 at [74].

73 In proceedings before the Federal Court Betfair Pty Ltd has challenged decisions by Racing NSW and Harness Racing NSW that it pay 1.5% of turnover as a condition of being granted approval to use racefield information. That approval has been granted under the Racing Administration Act 1998 and the Racing Administration Amendment (Publication of Race Fields) Regulation 2008. Betfair alleges that the conditions that it pay 1.5% of turnover, are unlawfully protectionist and discriminatory in breach of the guarantee of free trade in s 92 of the Commonwealth Constitution. Those proceedings have involved the consideration by the Federal Court, at both single Justice (Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140) and Full Court levels (State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160), of some of the same issue relating to legal professional privilege that have been agitated before me.

74 In the course of the Federal Court proceedings Betfair sought discovery from Racing NSW and HRNSW. Among the discovered by them were, [2009] FCAFC 160 at [11]:

75 The State of New South Wales intervened in those proceedings claiming public interest immunity and legal professional privilege in respect to those documents. At first instance, Jagot J found that the drafting of legislation pursuant to instruction did not, in and of itself, involve a retainer, the dominant purpose of which was the giving of legal advice. As a result the legal professional privilege claim was not successful. The State of NSW sought leave to appeal that decision.

76 On appeal the Full Court held, at [15] to [24]:

Waterford v Commonwealth

Three Rivers District Council v Governor and Company of the Bank of England (No 6)

WorkCover Authority (NSW) v Law Society of New South Wales

77 The Full Court also considered whether the privilege applied to the communications made by OLGR to members of the working group, prior to the communication of any drafting instructions to Parliamentary Counsel about the instructions to be given to Parliamentary Counsel, including drafts of drafting instructions. The Court, observed at [32]

Pratt Holdings Pty Ltd v Commissioner of Taxation

Pratt

78 This is consistent with the decision of the Court of Appeal in General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84.

79 The Full Court referred (at [34]) to an email from Mr Marzic dated 24 January 2007 which said that the purpose of the Working Group was "to workshop the drafting instructions for the race fields regulations" and "to assist OLGR in developing drafting instructions to be provided to Parliamentary Counsel. Draft regulations will then be submitted to the Minister for consideration. The meeting is confidential in accordance with the protocol that applies to developing legislation generally."

80 There was also evidence that the subsequent discussions of the Working Group focused on successive drafts of the drafting instructions that were to be given to Parliamentary Counsel. The Full Court said at [36] and [37] that:

81 The Full Court concluded at [38]:

"Examination of the documents the subject of appeal confirms that these documentary communications, whether from OLGR to members of the Working Group or from members of the Working Group to OLGR, were made in order consensually to formulate drafting instructions that OLGR would provide to Parliamentary Counsel. Having regard to the documents and the evidence to which we have been referred, we conclude that the communications were made for the dominant purpose of the State, as represented by OLGR, seeking and obtaining legal advice from Parliamentary Counsel. We therefore reject Betfair’s submission that the dominant purpose test was not satisfied.”

82 OLGR submits that the conclusions of the Full Federal Court should be treated as highly persuasive: Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 at [47]. I accept that submission.

83 OLGR submits that the documents subject to the legal professional privilege exemption can be divided into three categories.

84 The first is advice from the Crown Solicitor and counsel on the legality of proposed legislative and regulatory amendments, including summaries of that advice and internal discussions of that advice (documents A4, A6, A7, A8, A10, 12-15, 17, 18, 21-22, 23, 24, 43(only the summary of advice)). The documents are more fully described in the OLGR schedule of documents. Having reviewed the documents in issue it is evident that the giving and obtaining of legal advice was the dominant purpose behind these communications. They are confidential documents prepared for the purposes of OLGR obtaining legal advice with respect to proposed regulations. The exception to this is an email in document 23, dated 21 February 2008, which forwarded privileged material, but is entirely organisational in content and does not relate to legal advice.

85 Secondly, documents relating to drafting instructions to the Parliamentary Counsel's Office, advice from the PCO and annotated draft regulations (documents 4, 6, 7, 8, 9, 12-15, 17-18, 21, 22, 26, 28-38). Having reviewed those documents I am satisfied that documents 4, 6, 8, 9, 21, 22, 26, 28-31 and 33-38 relate to confidential communications relating to the giving and receiving of legal advice between OLGR, others and its legal advisors in the course of the drafting of the regulations.

86 Documents 12-15 and 17-18 are various drafts of an OLGR report to the Minister on the consultations with the racing control bodies, with various draft attachments. Included within document 12 are drafting instructions to the Office of Parliamentary Counsel which I have already found are covered by legal advice privilege. The latter drafts, from document 15 onward, also contain a draft letter from the Minister to the CEO of Racing NSW in its evolving incarnations.

87 The report, in its various incarnations, advised the Minister on the progress of consultations with the working group regarding the development of the Regulation and on issues considered by the group which require further debate or decision and makes certain recommendations. The reports reflect the progress of the working party’s confidential deliberations in the evolution of regulatory proposals, and discusses legal advice received and to be obtained. The reports advise the Minister on the progress of confidential consultations he put in place. They reflect the consultative process which the Minister had put in place for the operation of the working party “under a regime of confidentiality, to formulate and finalise the drafting instructions.” I accept that the dominant purpose for their creation was as part of the process of seeking and obtaining advice from Parliamentary Counsel.

88 Documents 13, 14, 15 and 17 also contain emails which attached those drafts. The emails themselves do not contain any communication made for the purpose of seeking legal advice, and are not exempt.

89 Thirdly, legal advice from Racing NSW on the implications of the Betfair decision (document 25B). This was forwarded to Senior Officers of the Department, via email, by the CEO of Racing NSW as confidential legal advice. I infer from other correspondence that this was by way of quid qou pro for the provision of confidential Crown Solicitor’s advice to him, by arrangement with the Minister. A reading of the document confirms that it is advice on the implications of the High Court’s decision in Betfair. It is unsigned and is not on any letter head. It is not clear who wrote it, whether the author was a lawyer within the meaning of s. 117 of the Evidence Act 1995, or (assuming the author was a lawyer) for whom it was written. Mr V’Landy’s in his statement does not refer to it specifically, but does refer (in paragraph 11) to providing OLGR with Racing NSW legal advice (without giving any indication of who the advice was from), and objects to the release of this material which he says was provided confidentially and in reliance on legal professional privilege. Given his use of apparently privileged information (which is discussed below) I indicated during the hearing that I could give no weight to his assertions of reliance on legal professional privilege. I remain of that view.

90 The burden of establishing that a communication is the subject of legal advice privilege is on the agency. With respect to this advice OLGR argues that it records legal advice to NSW Racing, but not legal advice to it. This is certainly not clear from the document itself. Who wrote it, and their status, is entirely unclear. While the accompanying email asserts that it is legal advice more is required to attract the privilege under the provision of the Evidence Act 1995. Insofar as the clause 10 exemption is concerned, I am not satisfied it attaches to this document.

91 Section 122 of the Evidence Act 1995 relevantly provides:

92 This provision is said to represent a legislative attempt to more closely align s 122 with the common law of waiver of legal professional privilege, as expounded in Mann v Carnell (1999) HCA 66: see Explanatory Note to Sch. 1 item [57] of the Evidence Amendment Bill 2007. In that case Gleeson CJ, Gaudron, Gummow and Callinan JJ said at [28 and 29]:

Benecke v National Australia Bank

93 Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39 illustrates the role considerations of fairness play in determining whether there has been conduct inconsistent with the maintenance of the privilege in imputed waiver. It was a case in which the High Court considered whether a limited, confidential disclosure of privileged information to a third party for a specific purpose resulted in an implied or imputed waiver. The information concerned was a draft affidavit and initiating process to recover legal costs prepared for Mr Goldberg in proceedings against Ng. Mr Goldberg provided the documents to the Law Society, which was investigation a complaint of professional misconduct made by Ng. The majority of the High Court (Deane, Dawson and Gaudron JJ) noted that Mr Goldberg had not intended to waive the privilege attached to the documents by providing them to the Law Society, but held that the question for determination was whether ‘considerations of fairness required an imputed waiver’, at [27].

94 There are a number of decisions which consider whether partial disclosure of privilege information results in waiver of the all the information, as argued by the Applicant, who asserts that disclosure of the gist of an advise amounts to waiver.

95 In Waite v Hornsby Shire Council [2007] NSWADT 265 at [31-37] Higgins JM held that partial disclosure of information in relation to one subject matter was not inconsistent with the maintenance of the privileged information in respect to other subjects discussed in the advice.

96 In adopting that approach the Tribunal followed the decision the Full Court of Federal Court of in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 where Tamberlin J said, at [6]:

‘The above extracts express the substance of the advice that was given by the Australian Government Solicitor in each of the paragraphs. In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case.”

97 Gyles J said at [68]:

“The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.”

See also Ashfield Municipal Council v RTA [2004] NSWSC 917 at [18-22] per Barrett J.

98 In Osland v Department of Justice [2008] HCA 37 the Victorian Attorney-General had released a press release in which he advised that he had received advice from three named Senior Counsel that a petition of mercy should be denied. The Court found that the privilege was not waived. Gleeson CJ, Gummow, Heydon and Keifel JJ said at [48-49]:

Nine Films and Television Pty Ltd v Ninox Television Ltd

99 Bearing that understanding of the law in mind I turn to consider whether or not there has been a waiver of the privilege in relation to any or all of the information to which legal advice privilege attaches.

100 As I understand it the Applicant argues that legal advice privilege has been waived in three respects.

Betfair

101 With respect to each waiver the Applicant argues that:

102 The Working Party - It is clear from the evidence of Mr Marzik and Mr Simpson, who both attended the initial working party meeting, that the meeting opened with OLRG’s representatives making it clear that the deliberations of the working party were confidential. This is confirmed by Mr V’Landy’s statement and is in accordance with the emails inviting participants to the meeting. In his evidence Mr Marzik, who attended all six meeting of the working group, was firm that at later meeting he also cautioned the participants as to the confidentiality of the meetings and of their discussions. An examination of the various emails between Mr Marzik and participants of the working group reveals that when he distributed legal advice he made it clear that it was provided on a confidential basis.

103 Mr Marzik acknowledged that implicit in the nature of the working group, was that representatives of each racing body would have to report back to their respective boards on the work of the working party. He said that while participants could consult with their Boards ‘in general terms’ they were not to disclose specific drafting instructions or advice. They could discuss issues, but were not to pass on or distribute documents they were using. He described this as a convention applicable to such working parties, which has been adopted and used before, and which is well understood. He agreed that in contributing to the deliberations of the working party racing bodies were expected to consult external stakeholders, such as TAB Limited.

104 Mr Marzik explained that the contribution of the racing bodies to the development of the Regulations was essential as they were the bodies responsible for granting approvals and levying fees. They would therefore be a lynch-pin of the new racefields scheme, and their input into the design and form of the Regulations was critical. He acknowledged that the racing bodies were effectively industry representative bodies. He agreed they have with a commercial focus and a responsibility for the ‘economic development and viability of the racing industry.’ He accepted that they obtain the large majority of their funding from Tabcorp under the RDA, which is a ‘purely commercial arrangement.’ He accepted that there was a risk, when dealing with the controlling bodies, that they might seek to advance Tabcorp’s commercial interests (to which their income is tied), but did not accept that this conflict might affect their role in policy development. He agreed that the racing bodies had been anxious for the racefields legislation to be implemented since 2005 and were concerned at their reductions in revenue.

105 Mr Simpson from GRNSW had only attended the first meeting of the working party. His evidence as to the confidentiality of the process mirrored that given by Mr Marzik. Mr Simpson said that his understanding of the racefields legislation at the time was that it was designed to catch everyone other than Tabcorp, who were already paying a fee. GRNSW was interested in maximising its return.

106 After the first meeting GRNSW was represented at the working party by its CEO, who reported back to the Board. Mr Simpson said he attended those Board meetings. The CEO had briefed the Board on the working party processes, but not on detailed proposal. Mr Simpson had not seen any legal advice, or summaries of it, provided by the State. Mr Simpson said GRNSW had consulted a number of outside bodies, including Betfair, as part of the process, but had not consulted Tabcorp. He agreed that the income of all the racing bodies was tied to Tabcorp, and accepted that there could be a perception that the racing bodies in the working party were seeking to advance Tabcorp’s interest.

107 Given that evidence with respect to the operations of the working party I do not accept that, by providing summaries of legal advice to the Members of the working party, OLGR waived the privilege in that advice. The meeting and operations of the working party were expressed and understood to be confidential. While participants were authorised to feedback to and consult with their organisations and others on general issues, the common understanding was that the specifics with which the working party were concerned were to be treated as confidential, and that documents provided to participants were not for distribution. The provisions of summaries of legal advice by OLGR to participants in the working group must be viewed in that context.

108 The communication of advice took place in circumstances which rendered it a confidential communication within the meaning of s 177 of the Evidence Act 1995. Because the legal advice was disclosed in the course of a confidential communication, s 122(5) provides that by making that disclosure OLGR is ‘not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence.’

109 As a result I am not satisfied that legal advice privilege was waived by the disclosure of legal advice to the working party.

110 The Provision of the Betfair Advice to Mr V’Landy’s – The letter from Mr Whelan to Mr V’Landy’s forwarding this advice said:

111 Mr Marzik in his evidence said he was aware of this communication, but had not been a party to it. Mr V’Landys in his statement does not address it.

112 In my opinion the letter providing the advice to Mr V’Landys makes it clear that the disclosure was on a confidential basis and that he should not disclose it to any third party. Those circumstances rendered it a confidential communication within the meaning of s 117 of the Evidence Act 1995. Because the legal advice was disclosed in the course of a confidential communication, s 122(5) provides that by making that disclosure OLGR is ‘not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence.’

113 Mr V’Landys’ Radio Interview – Mr V’Landy’s was interviewed by Greg Radley on 2KY on 16 July 2008. In the course of that interview he made a number of statements with respect to the advice the NSW Government had received.

114 In supplementary submission OLGR raised the issue of whether the advice Mr V’Landys was referring to was that provided to him on 1 April 2008 by Mr Whelan, or whether it included earlier advices provided to the working party. . It is somewhat difficult to precisely reconcile Mr V’Landy’s statements during his interview with the exact advices, all of which cover the subject matter he referred to, as none of them were provided by Queens Counsel. Given that he was unavailable for cross-examination it is not possible to reconcile those differences.

Amendment

Regulations

(Chapman).

(McKinnon).

Amendment

Regulations

(Waterford).

151 Central to OLGR’s argument is the assertion, based on the evidence of Mr Marzik, Mr Simpson, and Mr V’Landys, that the full and frank input made to the working party by the racing control bodies would be inhibited, if the deliberations of the working party were disclosed.

152 This was certainly Mr Marzik’s view, although he acknowledged that he was aware, as a public servant, that advice he gives to the Minister could be released under FOI. He said that despite this he always gives unexpurgated advice to the Minister, “but sometimes the advice and the document might be framed in the context that it will not be released under the FOI because it will be exempt.”

153 Mr Simpson when asked about the potential impact on GRNSW’s participation in future working parties, if the documents in issue were released, said that GRNSW’s “willingness to participate in a full and frank manner would be diminished.” When asked to explain this, he said that he would be reluctant to express views on the spot in brainstorming sessions, and would expect GRNSW’s contributions to be more considered, with time taken to reflect on them.

154 From Mr Simpson’s evidence I concluded that GRNSW would be less spontaneous and more considered in its participation in working parties, if not assured that those deliberations were confidential. I am not persuaded from Mr Simpson’s evidence that the views expressed by GRNSW would necessarily be less full and frank.

155 In his statement Mr V’Landys said that if communications within the working group were not kept confidential Racing NSW would be reluctant to divulge confidential information to OLGR in the future, and would limit open communication between them in future consultations, such as the working group. Given the strong public advocacy of racefields legislation by Racing NSW and Mr V’Landys, which was broadly acknowledged during the hearing, I have difficulty in accepting these untested assertions from Mr V’Landys. His public stance on the issues is redolent of strong advocacy. The prospect that Racing NSW would be constrained in its participation in the working party by the potential for its views to be made public is unconvincing.

156 The various public interests identified by OLGR in support of the exemption lose considerable force when it is remembered that the racefields legislation has now been passed and is in operation. If the consultation process were ongoing the arguments would have considerably more force: Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588, at [58]. In reaching that conclusion I do not doubt that the introduction of the racefields regime remains controversial to some of those affected by it. It provides the factual substratum to litigation concerning it, and to commercial relationships affected by it. Nonetheless, the public interest in protecting the consultations has been substantially diminished by the racefields legislation commencing operation.

157 Additionally, the Applicant points to the contractual relationships between GRNSW (and the other racing control bodies) and Tabcorp as raising a public interest in disclosure. The racing control bodies are under a contractual obligation to maximise Tabcorp’s returns, and to consult with it. The practical reality of their financial dependence on Tabcorp also points to a correspondence between their apparent interest and those of Tabcorp. Because the introduction of the racefields legislation had the potential to significantly impact on Tabcorp’s operations, there is, in my view, a strong public interest in the having the input of the racing control bodies, who were contractually tied to and financially dependant on Tabcorp, into the development of that legislation open to scrutiny.

158 While I accept that GRNSW and the other racing control bodies have statutory duties relating to the maintenance and advancement of their respective racing codes and industries, they also have contractual and financial relationships which bind them to Tabcorp. It is no doubt true that the racefields legislation has had the effect of reducing that dependency and providing the racing codes with new streams and sources of income. This broadening of their sources of income can be viewed as pointing to the GRNSW giving frank and fearless advice in the course of the working party’s deliberations. That, however, represents the results of racefields legislation as introduced by the Government, and does not give a true indication of the input of GRNSW and the other racing control bodies to the working party. The fact that GRNSW is a commercial body, independent of government but with close financial and contractual ties to Tabcorp, creates a strong public interest in its input to the working party being open to public scrutiny, now the racefields legislation is in operation.

159 When these competing public interests are weighed it is my view that the balance points to disclosure of the internal working papers of and relating to the working party, unless those documents are otherwise exempts.

160 Separate mention should be made of OLGR’s document 42 – the letter from Mr V’Landy’s to the Minister – which was written after the commencement of the Racing Administration Amendment (Publication of Race Fields) Regulation 2008.

161 Not for publication

162 Not for publication

163 As such I do not accept that it satisfies the requirements of clause 9(a). The internal working documents exemption therefore does not apply.

164 I conclude that the following documents are not exempt under clause 9:

- OLGR’s documents numbered A1, A2, A3, A10, 2, 3, 4, 5, 6, 7, 8,9, 10, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25B, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 42 and 43.

- GRNSW’s documents 1, 2 and 3.

165 Clause 13 of Schedule 1 provides the following exemption:

166 OLGR relies on the confidential information exemption with respect to documents A1 - A3, 3 – 15, 17, 18, 20 - 25B, 28, 31, 35, 36, 37, and 42. I have already found many of those documents exempt under clause 10. The remainder, apart from document 42, are exchanges of information related to the operation and considerations of the working party.

167 GRNSW relies on the confidential information exemption with respect to all its documents. Documents 1-3 are submission from the CEO to Mr Whelan at OLGR relating to the racefields legislation as part of the working group processes. GRNSW relies on clause 13(b) with respect to these documents. Documents 4 and 5 are minutes of the Business and Strategy Committee meetings held in March and April 2008 while document 6 is a copy of the deed of accession. GRNSW relies on clause 13(a) with respect to the committee minutes, and both limbs of the clause with respect to the deed of accession.

168 It is convenient to consider these claims for exemption in four categories:

169 The Exchanges and Submissions - OLGR and GRNSW each rely on clause 13(b) with respect to the exchanges and submissions. It is clear from all the evidence relating to the establishment and operation of the working party that those from OLGR who convened it, and the participants from GRNSW and Racing NSW regarded its processes and the information they provided in the course of its work as confidential. I accept that this was the case.

170 In order for such information to be exempt under clause 13(b) two further requirements need to be met. The agencies need to establish first that disclosure could reasonably be expected to prejudice the future supply of such information to the Government and, secondly, that disclosure would be contrary to the public interest.

171 In Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180 at 190 (Bowen CJ and Beaumont J), the Full Court held that the words "could reasonably be expected to" 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" .

172 In determining whether disclosure of the information would "prejudice" the future supply of such information to the agency, the test is not whether the particular confider whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future: McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 at [25].

173 In this case the relevant information in issue is submissions and interchanges made by and between regulatory authorities on changes to legislation or regulations. The evidence of Mr Marzik, Mr Simpson and Mr V’Landys was that, if this information is disclosed, the quality of their participation and candour in future working parties would be constrained. I have already discussed that evidence in some detail and accept that, should disclosure occur, GRNSW’s input might be more considered and less spontaneous. That does not mean GRNSW will be less candid or diligent in the pursuit of its interest or those of the industry it represents. It will still provide the information, albeit in a more considered form. Indeed, given GRNSW’s role and statutory responsibilities to its industry, it is difficult to conceive of circumstances whereby disclosure would stop its putting its views on important questions affecting the legislation governing the industry’s operation and its financial viability. To do so would breach its statutory responsibilities. The same can be said with respect to Racing NSW. With respect to OLGR itself, Mr Marzik, in his evidence, made it clear that disclosure would not detract from the quality of the advice he, as a public servant, gives to the Minister.

174 Given those conclusions I do not consider that, if the information is disclosed, it could be reasonably expected that GRNSW and the other racing bodies would refuse to supply similar information in the future. It follows that I do not accept that the exemption in clause 13(b) applies to these documents.

175 I would add that, were I incorrect in this, I would nonetheless not be satisfied that disclosure is contrary to the public interest. The assessment of whether the release of information to the public is an objective one: Macquarie University v Howell [2009] NSWADTAP 12 at [19]. OLGR and GRNSW identify the public interest in the Minister being able to confidentially consult with the racing codes about proposed legislative reforms, which would be compromised should the information be disclosed. It argues that release of its submissions may -

‘… result in confusion or misunderstanding by the public as to why GRNSW adopted the various views it did in relation to the issues addressed in the submissions, as the submissions themselves do not include detailed explanations as to the reasons for the views GRNSW expressed in each submission. For example, GRNSW's position as to the basis upon which the relevant racing control bodies should be able to impose a fee on an applicant for authorisation is not the same in each of the submissions.’

176 At their heart both OLGR’s and GRNSW’s primary submissions rely on an acceptance of their assertions that the supply of information to the Minister, in relation to future, proposed amendments, will be jeopardised if the information is released. I am not persuaded of this. Additionally, it must be remembered that the racefields legislation is now in force. Were it still in the course of development a public interest in maintaining the confidentiality of the working party consultations would be manifest. As the legislation is now in operation, however, the need to protect the confidentiality of that process is not clear.

177 Additionally, I agree with the Applicant that the nature of the financial and contractual relationships between Tabcorp and the racing codes, in the circumstances, gives rise to a public interest in having the racing codes submissions on the racefields legislation disclosed. GRNSW submitted that there was no evidence that it had in any way acted inappropriately or improperly in making submissions to the working party, or that its submissions were affected or influenced by its contractual and financial relationship with Tabcorp. While I accept this, the proposition, in my view, misconceives the public interest in issue which is in that of transparency and public accountability.

178 The reality is that GRNSW has a close contractual and financial relationship with Tabcorp, with attendant obligations to each other. GRNSW also has statutory obligations to its industry. In the context of its submissions to and participation in the racefields working party, that relationship can give rise to a perception that GRNSW was influenced or affected by its relationship with Tabcorp. That perception arises from the very nature of the relationship. It is not necessarily a reality. In my opinion that perception gives rise to a public interest in the information being disclosed, so that the participation by the racing codes is transparent.

179 When these competing public interests are weighed the balance is in favour of disclosure.

180 Document 42 – I have already outlined the nature of document 42 in paragraphs 161 and 162 above.

181 Not for publication

182 To be exempt under clause 13(b) the document must have been obtained in confidence, disclosure must reasonably be expected to prejudice the future supply of such information; and the disclosure must, on balance, be contrary to the public interest. I have already made a number of observations on the willingness of the racing bodies to provide information to government in pursuit of their perceived interest. While Mr V’Landys in his affidavit indicated that Racing NSW would be reluctant to divulge confidential information to OLGR, if confidential communication were disclosed, his own public advocacy in the interest of Racing NSW point to the contrary conclusion. For substantially the same reasons as those given in paragraph 176 above, I am not satisfied that, if document 42 is released, the future supply of such information would be prejudiced.

183 The Consolidated RDA – With respect to this document GRNSW relies on clause 13(1)(a) i.e. that it contains matter the disclosure of which would found an action for breach of confidence.

184 In Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277 the Tribunal considered what was necessary to satisfy the requirements of clause 13(a):

Re B and Brisbane North Regional Health Authority

Corrs Pavey Whiting & Byrne v Collector of Customs

185 The Consolidated RDA contains provisions prohibiting parties to it disclosing the provisions of the deed or of information exchanged between them for the purposes of the deed. While general outlines of the effect of some of the provisions of the Consolidated RDA are in the public domain, those details do prevent provisions of the deed being identified as relevantly secret and confidential to the parties. Those confidential provisions are not trivial or generally known. There is a contractual obligation on GRNSW to keep the provisions of the Consolidated RDA confidential. There is evidence before me from Mr Nason, Mr Simpson and Mr V’Landys that disclosure of the consolidated RDA by GRNSW is not authorised by the other parties to it. I accept that evidence. I also accept the evidence of Mr Nason that Tabcorp would suffer a detriment, in terms of prejudice to its business, if the consolidated RDA were disclosed.

186 I accept that the Consolidated RDA contains information which would found an action for breach of confidence. It is therefore exempt under clause 13(a).

187 The Business and Strategy Committee Minutes – Meetings of the Business and Strategy Committee are conducted on a confidential basis. Matters discussed at those meetings relate to the commercial and business affairs of Tabcorp, RacingCorp and the three racing bodies, including GRNSW.

188 Mr Nason gave evidence that the Business and Strategy Committee is a Committee, created under the terms of the Consolidated RDA, of representatives of Tabcorp, Racing Corp, and of the racing codes. It has a number of consultative functions. It provides a forum for the discussion of affecting wagering and gaming, such as Tabcorp’s rules of wagering. It makes recommendations with respect to the proposed strategies of members; it receives management reports from Tabcorp and audited statements of fees payable under the consolidated RDA.

189 To be exempt under clause 13(b) a document must have been obtained in confidence, disclosure must reasonably be expected to prejudice the future supply of such information; and the disclosure must, on balance, be contrary to the public interest. The evidence clearly establishes that the meetings of the Business and Strategy Committee are treated by the partiers as confidential. As they relate to an exchange of information between the parties to the Consolidated RDA under that agreement, the Consolidated RDA prohibits parties to it from disclosing that information.

190 The information exchanged at those meetings is secret and confidential to the parties. It is not trivial or generally known. There is a contractual obligation on GRNSW to keep the information confidential. Mr Nason said that if the minutes of those meetings were to be disclosed, Tabcorp would be reticent about the nature and extent of the commercially sensitive information it shares with the other participants at those meetings. Mr Simpson gave evidence that any reduction in the information Tabcorp shared with GRNSW at such meetings would have a significant impact on GRNSW's ability to ensure that it is providing its consumers with racing products that they want, and so grow the greyhound racing industry in NSW.

191 As a result I accept that the Minutes contain information which would found an action for breach of confidence. It is therefore exempt under clause 13(a).

192 I conclude that the following documents are not exempt under clause 13:

- OLGR’s documents numbered A1 - A3, 3 – 15, 17, 18, 20 - 25B, 28, 31, 35, 36, and 37.

- GRNSW’s documents numbered 1 - 3.

193 GRNSW’s documents 4 -6 are exempt under clause 13

194 Clause 16 of Schedule 1 provides:

195 OLGR’s document 42 is a three page letter dated 8 July 2008 from Mr V’Landys to the Minister which the agency claims is exempt under clause 16.

196 I am unable to see how the release of this letter could be reasonably expected to have any of the effects specific in sub-clauses (a) (i), (ii), (iii) or (v).

197 Not for publication

198 As a result document 42 is not exempt under clause 16.

199 Set out below are two tables which summarise the conclusions I have reached with respect to these the claimed exemptions on both applications. In both tables I have adopted the following conventions:

200 This is the Table with respect to OLGR’s documents:

Clause 1 Cabinet Clause 2
Executive Council
Clause 7 Business Affairs Clause 9 Internal Working Docu-ments Clause 10 Legal Professional Privilege Clause 13 Confidential Information Clause 16 Operation of Agencies

A1

*

*

*

NE

*

NE

*

A2

*

*

*

NE

*

NE

*

A3

*

*

*

NE

*

NE

*

A4

*

*

*

*

E

*

*

A5

E

*

*

*

*

*

*

A6

E

*

*

*

E

*

*

A7

E

*

*

*

E

*

*

A8

*

*

*

*

E

*

*

A9

E

*

*

NC-OE

*

*

*

A10

*

*

*

NE

E

*

*

2

*

*

*

NE

*

*

*

3

*

*

*

NE

*

NE

*

4

*

*

*

NE

E

NE

*

5

*

*

*

NE

*

NE

*

6

*

*

*

NE

E

NE

*

7

*

*

NE

NE

*

8

*

*

*

NE

E

NE

*

9

*

*

*

NE

E

NE

*

10

*

*

*

NE

*

NE

*

12

*

*

*

NE

E

NE

*

13

*

*

*

NE

PE

NE

*

14

*

*

*

NE

PE

NE

*

15

*

*

*

NE

PE

NE

*

17

*

*

*

NE

PE

NE

*

18

*

*

*

NE

E

NE

*

19

*

*

*

NE

*

*

*

20

*

*

*

NE

*

NE

*

21

*

*

*

NE

E

NE

*

22

*

*

*

NE

E

NE

*

23

*

*

*

NE

PE

NE

*

24

*

*

*

NE

E

NE

*

25B

*

*

*

NE

NE

NE

*

26

*

*

*

NE

E

*

*

28

*

*

*

NE

E

NE

*

29

*

*

*

NE

E

*

*

30

*

*

*

NE

E

*

*

31

*

*

*

NE

E

NE

*

32

*

*

*

NE

E

*

*

33

*

*

*

NE

E

*

*

34

*

*

*

NE

E

NE

*

35

*

*

*

NE

E

*

*

36

*

*

*

NE

E

NE

*

37

*

*

*

NE

E

NE

*

38

*

E

*

NC-OE

NC-OE

*

*

42

*

*

*

NE

*

NE

*

43

*

*

*

*

PE

*

*

201 It can be seen that I have found documents A1, A2, A3, 2, 3, 5, 7, 10, 19, 20, 25B, 32 and 42 not to be exempt documents, while documents 13, 14, 15, 17 and 43 are partially exempt.

202 This is the Table with respect to GRNSW’s documents:

Document No

Clause 7 Business Affairs

Clause 9 Internal Working Documents

Clause 13 Confidential Information

1

*

NE

NE

2

*

NE

NE

3

*

NE

NE

4

E

*

E

5

E

*

E

6

E

*

E

203 I have found documents 1, 2 and 3 not to be exempt.

The Residual Discretion

204 The Applicant submitted that with respect to those documents which I found exempt I should exercise the residual discretion to release them.

205 OLGR in its supplementary submissions invited me to conclude that there is no residual or override discretion.

206 It can be seen that the OLGR documents which I have found to be exempt are either restricted documents or documents exempt on the basis of legal professional privilege. There is binding authority that the residual discretion does not apply to restricted documents (IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79) or to documents found to be subject to legal professional privilege (McGuirk v University of NSW [2009] NSWCA 321). In those circumstances there is no room in this matter for the exercise of the residual or override discretion. I therefore decline OLGR’s invitation to consider whether or not on a proper interpretation of s 25 of the Freedom of Information Act 1989 there is such discretion in the Tribunal.

207 The same cannot be said of GRNSW’s documents 1, 2 and 3, which have found exempt under clauses 9 and 13. They are the minutes of the Business and Strategy Committee meeting and the Consolidated RDA. They relate to the commercial arrangements and operations between Tabcorp, GRNSW, HRNSW, Racing NSW and Racing Corp. I have already found that there is a potential for significant commercial harm to the interests of those parties if those documents are released. While I have accepted that the public interest in transparency requires that the exchanges between GRNSW and OLGR with respect to the development of the racefields regulation be disclosed, because of GRNSW financial and commercial ties to Tabcorp, I do not think that the same pubic interest requires the disclosure of these documents. They relate to the mechanics, details and operations of those commercial relationships. I accept that those commercial interests would be prejudiced if the documents were released. In my view the public interest requires that those commercial ties be acknowledged and declared, but not that their details and operations be disclosed, especially where there is a real potential from harm as result of disclosure.

208 In those circumstances I refuse to exercise the residual discretion.

209 With respect to the review of OLGR’s decision I will vary the decision made on internal review to determine, for the reasons outlined above, that 30 days after the publication of these reasons the Applicant have:

210 With respect to the review of GRNSW’s decision I will vary the decision made on internal review to determine, for the reasons outlined above, that 30 days after the publication of these reasons the Applicant have documents 1, 2 and 3.

211 I think it appropriate that I also make an order under s 75 of the Administrative Decisions Tribunal Act 1997 prohibiting the publication of paragraphs 161, 162, 181 and 197 of these reasons to any person apart from OLGR. Those paragraphs outline and discuss confidential evidence given on OLGR’s behalf to the Tribunal.

15/04/2010 - Deletion of reference to document 32 - typographical error - Paragraph(s) Coversheet and paragraph 209

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Citations

Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72

Most Recent Citation

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28

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Cases Cited

31

Statutory Material Cited

14

Betfair Pty Ltd v Western Australia [2008] HCA 11

Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105

Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39

CITATION:	Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT David Fitzpatrick FIRST RESPONDENT NSW Office of Liquor and Gaming SECOND RESPONDENT Greyhound Racing NSW
FILE NUMBER:	083360; 083361
HEARING DATES:	8, 9, and 10 June 2009
SUBMISSIONS CLOSED:	17 December 2009
DATE OF DECISION:	19 March 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Freedom of Information Act 1989 – cabinet documents – executive council documents – legal professional privilege – documents affecting business affairs –internal working documents – confidential information - operations of agencies
LEGISLATION CITED:	Greyhound Racing Act 2002 Greyhound Racing Act 2009 Harness Racing Act 2002 Thoroughbred Racing Act 1996 Greyhound and Harness Racing Administration Act 2004 Racing Administration Act 1998 Totalizator Act 1997 Betting Control Act 1954 (WA) Racing Administration Amendment (Publication of Race Fields) Regulation 2008 Racing Administration Regulations 2005 Freedom of Information Act 1989 Administrative Decision Tribunal Act 1997 Freedom of Information Act 1982 (Cth) Evidence Act 1995
CASES CITED:	Ashfield Municipal Council v RTA [2004] NSWSC 917 Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180 AWB v Cole [2006] FCA 1234 Betfair Pty Limited v Western Australia [2008] HCA 11 Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140 Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141 Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 FCT v Pratt Holdings (2004) 136 FCR 357 General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39 Hawker v Premier's Department unreported, District Court, NSW, Urguhart J, 17 December 1990 Howell v Macquarie University [2008] NSWCA 26 IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 Macquarie University v Howell [2009] NSWADTAP 12 Mann v Carnell (1999) HCA 66 McGuirk v University of New South Wales; University of New South Wales v McGuirk [2009] NSWCA 321 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 Ministry of Transport [2007] NSWADT 236 National Parks Association of New South Wales Inc v Department of Lands [2005] NSWADT 124 Osland v Department of Justice [2008] HCA 37 Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277 Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279 Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 Waite v Hornsby Shire Council [2007] NSWADT 265
REPRESENTATION:	APPLICANT R Niall, barrister FIRST RESPONDENT K Groshinski, solicitor SECOND RESPONDENT A Johnson, solicitor
ORDERS:	On file 083360 vary the decision made on internal review to determine that 30 days after the publication of these reasons the Applicant have documents 1, 2 and 3.On file 083361 vary the decision made on internal review to determine that 30 days after the publication of these reasons the Applicant have:a. Partial access to documents 13, 14, 15, 17, 23 and 43.b. Access to documents A1, A2, A3, 2, 3, 5, 7, 10, 19, 20, 25B and 42.

Clause 1 Cabinet	Clause 2 *Executive Council*	Clause 7 Business Affairs	Clause 9 Internal Working Docu-ments	Clause 10 Legal Professional Privilege	Clause 13 Confidential Information	Clause 16 Operation of Agencies
A1	*	*	*	NE	*	NE	*
A2	*	*	*	NE	*	NE	*
A3	*	*	*	NE	*	NE	*
A4	*	*	*	*	E	*	*
A5	E	*	*	*	*	*	*
A6	E	*	*	*	E	*	*
A7	E	*	*	*	E	*	*
A8	*	*	*	*	E	*	*
A9	E	*	*	NC-OE	*	*	*
A10	*	*	*	NE	E	*	*
2	*	*	*	NE	*	*	*
3	*	*	*	NE	*	NE	*
4	*	*	*	NE	E	NE	*
5	*	*	*	NE	*	NE	*
6	*	*	*	NE	E	NE	*
7	*	*	NE	NE	*
8	*	*	*	NE	E	NE	*
9	*	*	*	NE	E	NE	*
10	*	*	*	NE	*	NE	*
12	*	*	*	NE	E	NE	*
13	*	*	*	NE	PE	NE	*
14	*	*	*	NE	PE	NE	*
15	*	*	*	NE	PE	NE	*
17	*	*	*	NE	PE	NE	*
18	*	*	*	NE	E	NE	*
19	*	*	*	NE	*	*	*
20	*	*	*	NE	*	NE	*
21	*	*	*	NE	E	NE	*
22	*	*	*	NE	E	NE	*
23	*	*	*	NE	PE	NE	*
24	*	*	*	NE	E	NE	*
25B	*	*	*	NE	NE	NE	*
26	*	*	*	NE	E	*	*
28	*	*	*	NE	E	NE	*
29	*	*	*	NE	E	*	*
30	*	*	*	NE	E	*	*
31	*	*	*	NE	E	NE	*
32	*	*	*	NE	E	*	*
33	*	*	*	NE	E	*	*
34	*	*	*	NE	E	NE	*
35	*	*	*	NE	E	*	*
36	*	*	*	NE	E	NE	*
37	*	*	*	NE	E	NE	*
38	*	E	*	NC-OE	NC-OE	*	*
42	*	*	*	NE	*	NE	*
43	*	*	*	*	PE	*	*

Document No	Clause 7 Business Affairs	Clause 9 Internal Working Documents	Clause 13 Confidential Information
1	*	NE	NE
2	*	NE	NE
3	*	NE	NE
4	E	*	E
5	E	*	E
6	E	*	E