Neary v Treasurer of New South Wales

[2001] NSWADT 161

Set aside by Appeal: set aside by appeal on 15 February 2002
Neary -v- Treasurer of New South Wales [2002] NSWADTAP 4

CITATION:	Neary -v- Treasurer of New South Wales [2001] NSWADT 161
DIVISION:	General Division
PARTIES:	APPLICANT Vincent Neary RESPONDENT Treasurer of New South Wales
FILE NUMBER:	003394
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	06/22/2001
DATE OF DECISION:	09/24/2001
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - cabinet documents - Freedom of Information Act - access to documents - cabinet documents - Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 Rittau v Commissioner of Police [2000] NSWADT 186, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 Kay (No 2) v Department of Corrective Services [2000] NSWAD 67 Kennedy v Commissioner of Police [2001] NSWADT 39 Chief Executive, SAS Trustee Corporation v Daykin [2000] NSWADTAP 20 Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604
REPRESENTATION:	APPLICANT In person RESPONDENT N Sharp, solicitor
ORDERS:	Decision under review is affirmed.

1 This decision concerns an application made under s.53 of the Administrative Decisions Tribunal Act 1997 (“Tribunal Act”) by Vincent Neary for a review of a decision by the Treasurer of NSW refusing access to certain documents sought by Mr Neary in his Freedom of Information (“FOI”) request of 28 September 2000. With the consent of the parties this matter has been determined “on the papers.”

Background

2 On 1 March 1997, the Sydney Morning Herald published a story in which it reported that the Treasurer, Mr Egan, had criticised accounting practices in the State Rail Authority (“SRA”). In June 1999, Mr Neary made an FOI application in very similar terms to the present application which, in effect, simply adds a couple of categories of documents relating to the same subject matter. In summary, Mr Neary sought and still seeks documents which showed that infrastructure funds had been used by the SRA to “prop up loss-making passenger services” and that “creative accounting” had disguised the true costs of passenger rail services.

3 On 12 July 1999, in response to his 1999 FOI request, a senior Treasury official told Mr Neary that there were no documents positively identified which fell within the scope of his request. Two documents of possible relevance were supplied to him. He then sought an internal review of the original determination. Four further documents were identified as relevant to the application. They were not released to him.

4 Two documents – a Treasury paper entitled “Funding shortfall and savings in NSW Rail Entitities” prepared for the Cabinet standing committee on the Budget for its meeting of 12 December 1996, and a Treasury paper entitled “Department of Transport (SRA and Rail Entities) Interim Budget Review” prepared for the committee for its meeting of 17 February 1997 – were refused pursuant to Schedule 1, Part 1, Clause (1)(a) of the Freedom of Information Act 1989 (“FOI Act”). on the basis that they were prepared for submission to Cabinet.

5 The other two documents – minutes of the Cabinet committee meetings of 12 December 1996 and 17 February 1997 were refused pursuant to Clauses(1)(d) and (1)(e) of Schedule 1 on the basis that they are Cabinet records.

6 On 25 February 2000, pursuant to s.124(4) of the Tribunal Act, the Director-General of the Cabinet Office, Mr Roger Wilkins, certified that the minutes of the Cabinet committee meetings, together with the Treasury papers which had been prepared for those meetings, were Cabinet documents within the meaning of clause 1 of Schedule 1 of the FOI Act.

7 Mr Neary then applied to the ADT for a review of the decision to refuse him access to the documents. On 3 March 2000, the matter came before Judicial Member Skinner. In an extempore decision Judicial Member Skinner held that the s.124 certificate was conclusive and deprived the Tribunal of jurisdiction to review the Treasurer’s decision to refuse to grant access to the documents sought. He then dismissed the application.

8 On 28 September 2000, Mr Neary wrote to the Office of the Treasurer, NSW seeking documents in eight separate categories relating to the comments of the Treasurer reported in May 1997.

9 In response to this request which, as previously noted was in very similar terms to the 1999 request, the Office of the Treasurer by letter dated 20 October 2000 identified seven documents relevant to that request. They were a press release dated 28 February 1997 by the Treasurer (which had not previously been disclosed to Mr Neary); the Cabinet submissions referred to above, the Cabinet minutes referred to above and, in addition, the draft Cabinet minutes for the meetings referred to above. Mr Neary was supplied the press release but, as previously, was refused access to the Cabinet submissions and minutes. He was also this time refused access to the draft Cabinet minutes on the same basis. On 15 December 2000 Mr Neary made an application to the ADT for review of that decision (the application).

10 This matter came before me for a planning meeting on 16 February 2001. At that Planning Meeting the applicant raised his concern with the scope of documents covered by the s. 124(4) certificate. Subsequent to that meeting, the Director-General issued a new s. 124(4) certificate on 1 March 2001. In these proceedings the respondent relies on the 1 March 2001 certificate and no longer presses its reliance on the 25 February 2000 certificate.

Jurisdictional Issue

11 The Crown Solicitor submits that the Tribunal does not have jurisdiction to deal with the application as the s.124 (4) certificate applies to all the documents sought by the applicant. Section 124(4) of the Tribunal Act enables the Director-General of the Cabinet Office to certify that a document is a Cabinet document. Such a certificate is conclusive of that fact and authorises any person who would otherwise have to disclose a document to, or lodge it with, the Tribunal to refuse to do so.

12 Mr Neary, on the other hand, contends that the Tribunal, pursuant to s.63 of the Tribunal Act, has power to determine the application and to order the disclosure of an exempt or restricted document, if it determines that is the “correct and preferable decision”.

13 In Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 the Tribunal held that it had power pursuant to s.63 of the Tribunal Act to review the decision of an agency to refuse access to an exempt document. That decision has been followed in a number of recent Tribunal decisions including Rittau v Commissioner of Police [2000] NSWADT 186, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11, Kay (No 2) v Department of Corrective Services [2000] NSWAD 67, Kennedy v Commissioner of Police [2001] NSWADT 39 and by the Appeal Panel in Chief Executive, SAS Trustee Corporation v Daykin [2000] NSWADTAP 20. To date there has been no examination of the issue by the Supreme Court.

14 The Crown Solicitor submits that these cases were, on that point, wrongly decided. He submits that there is no discretion to override an agency’s decision to refuse to release exempt documents, notwithstanding the provisions of s.63 of the Tribunal Act. In summary he submits that the power conferred upon the Tribunal under s. 63 of the FOI Act to review an agency’s FOI application is limited by s. 124(1) of the Tribunal Act. Section 124(1) provides that nothing in the Tribunal Act (apart from the remaining provisions of s. 124) authorises or requires any body or person ( including the Tribunal) to release exempt documents. As a matter of construction, asserts the Crown Solicitor, the effect of s. 124(1) is that the Tribunal’s powers upon review conferred by s. 63 do not extend to the release of exempt documents.

15 Second, the Crown Solicitor argues that s. 55 (a) of the Tribunal Act clearly prohibits the Tribunal from releasing exempt documents. That section relevantly provides that in determining a review application, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise , disclose any exempt material. This provision clearly directs the Tribunal not to disclose exempt documents in determining a review application whether by disclosing them in its reasons for decision or otherwise . The word “otherwise” is of wide import and in its context, contends the Crown Solicitor, extends to the disclosure of exempt material by any means, including by the making of an order directing its release.

16 These are, obviously, live issues which have not been definitively resolved by a superior court. The decisions made previously in Mangoplah and the other cases cited have persuasive force only for other members of the Tribunal. Nevertheless, given that the decisions have now developed into a line of authority, and are not mere isolated outbreaks of judicial activism, independent Tribunal members may be expected to give weight to the decisions preceding their own, and to attempt, if appropriate in the given case to do so, to ensure consistency of decision-making. While I think that the question has by no means been definitively resolved at this stage, it appears to me that in the absence of binding authority to the contrary, that it is in the public interest that a consistent approach be followed by Tribunal members and that I follow the Mangoplah line of authority in relation to the question of jurisdiction.

17 Had Member Skinner dealt with the matter pursuant to s.63 it seems to me that it would be open to the Crown Solicitor to argue that this application ought be dismissed on the basis that it is in effect a relitigation of substantially the same issues as were the subject of Mr Neary’s previous application for review. As Mr Neary’s application for review was dismissed on the basis that a s.124 (4) certificate barred proceedings, there was no hearing on the merits or consideration of the substance of Mr Neary’s application for review. If the Mangoplah line of authority is correct, then I must consider the merits of the application.

Reviewing the decision

18 The objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government; and to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.

19 Section 16 of the FOI Act gives individuals a legally enforceable right to be given access to an agency’s documents in accordance with the Act .

20 Pursuant to s.25(1)(a) an agency may refuse access to a document if it is an “exempt document”. Section 6(1) of the FOI Act defines an “exempt document” to include a document referred to in Schedule 1. Under s.61 of the FOI Act, the agency has the burden of proving that its determination is justified. A conclusive certificate under s.124 (4) discharges that onus.

21 In an affidavit filed in these proceedings Ms Gay Bangrove, Executive Officer, Office of the Treasurer, NSW, deposed that the documents described in the s. 124 (4) certificate issued by the Director-General on 1 March 2001 are the same documents as identified by the Office of the Treasurer in its letter to the applicant dated 20 October 2000 as relevant to Mr Neary’s request for documents and to which access was refused. On the basis of this evidence which is accepted by me, all documents to which Mr Neary has been refused access, being covered by the s. 124(4) certificate are exempt documents .

22 Section 25(4) of the FOI Act provides:

An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.
23 Section 25 gives the decision-maker discretion to release an exempt document. It does not follow that once it is established that a document is an exempt document that the decision-maker must refuse access to that document, although that will frequently be the case. To do so would in my view undermine the objectives of the Act. In exercising their discretion concerning exempt documents the decision-makers must take into the objects of the Act as well as the public interest in, for example, preserving the integrity of Cabinet processes.

24 That said, it would be rare indeed for an exempt Cabinet document, especially one covered by a conclusive certificate to be disclosed to an FOI applicant. The reason for this is very simple. Our system of government depends for its integrity and proper functioning upon Cabinet being free to deliberate on the most crucial questions of the day in the confidence that those deliberations will be conducted frankly and with the best available information. Ministers need to be able to speak and listen openly and critically in order to arrive at the best possible decisions they are capable of reaching in the public interest. To do so the confidentiality of their discussions is essential and critical.

25 As I have implied above, where the document or documents the subject of a review of this nature are exempt Cabinet documents, it will be a rare event when the “correct and preferable decision” is to disclose them. In Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604, the High Court, considering the Commonwealth Freedom of Information Act, emphasised the need for watertight protection of Cabinet deliberations.

26 Mr Neary has been fighting a long and apparently bitter campaign to prove his allegations of corruption and malpractice within the SRA’s signalling section in the late 1980s. He clearly believes that the documents he seeks under this FOI application may provide some evidence, direct or indirect, of his contentions. He regards himself as a whistleblower who has been unjustly sacked and against whom parts of the NSW public service and Government have conspired.

27 I am not in a position to judge the truth or otherwise of those beliefs. What is clear is that the documents he seeks are Cabinet documents. They are exempt documents. The documents have not been produced to the Tribunal and I have therefore not had an opportunity to examine them, but it would appear that they were created by Treasury officials in late 1996 and early 1997. They do not appear to have anything to do with corruption in the signalling section of the SRA in the 1980s.

28 If the Treasurer’s press release of 28 February 1997 reflects the tone of the documents, one can readily gather that the authors of the Treasury documents were not admirers of the SRA, nor was the Treasurer. It seems unlikely that they were involved in covering up wrongdoing on the part of SRA officials at the same time they were exposing “creative accountancy” on the part of the SRA in public by way of press release following the Cabinet discussions in December 1996 and February 1997.

29 If I understand the thrust of Mr Neary’s argument, it is that “Government Ministers cannot be relied upon to comply with their legal obligations under the law and thus protect the public interest” in that they have not taken action against the senior SRA managers whom Mr Neary believes ought be exposed and punished for their maladministration. He contends that this Tribunal ought therefore make the “correct and preferable decision” by ordering the disclosure of the documents he seeks to him.

30 It seems to me that if it were “on the cards” that the disclosure of certain Cabinet documents would reveal some sort of criminal conspiracy by Ministers or public servants, the “correct and preferable” decision would be to order the disclosure of those documents. For an example one only has to consider the implications of Watergate in the history of government in the United States. But given the long-standing tradition of Cabinet confidentiality and collective responsibility, it will ordinarily be in the public interest that Cabinet documents be protected from disclosure.

31 In this case, notwithstanding his beliefs and lengthy submissions, I am not persuaded that Mr Neary has demonstrated that it is on the cards that disclosure of the Cabinet records he seeks would reveal, directly or indirectly, the misconduct on the part of SRA officials, or Ministers, he believes can be shown if only the relevant documents are made available to him.

32 I therefore affirm the Office of the Treasurer’s decision to refuse access to the documents in dispute.