Ranier Pty Ltd New South Wales Casino Control Authority and anor - [2007] NSWADT 118

No judgment structure available for this case.

CITATION: Ranier Pty Ltd New South Wales Casino Control Authority and anor [2007] NSWADT 118

DIVISION: General Division

PARTIES: APPLICANT
Ranier Pty Ltd
FIRST RESPONDENT
New South Wales Casino Control Authority
SECOND RESPONDENT
Star City Pty Ltd

FILE NUMBER: 063009

HEARING DATES: 12 July 2006, 30 AUgust 2006, 28 September 2006

SUBMISSIONS CLOSED: 28 March 2007

DATE OF DECISION:
6 June 2007

BEFORE: Pearson L - Judicial Member

CATCHWORDS: access to documents - business affairs - access to documents - confidential material - access to documents - secrecy provisions - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - secrecy provisions - Joinder of Parties

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Casino Control Act 1992
Freedom of Information Act 1982 (Vic)
Freedom of Information Act 1989
Interpretation Act 1987

CASES CITED: BY v Attorney General’s Department (No 2) [2003] NSWADT 37
Chief Executive, Casino Control Authority; Star City & Tabcorp v Preston [2003] NSWADTAP 64
Dawson v Commissioner Health Care Complaints [1999] NSWADT 57
Department of Health v Jephcott (1985) 8 FCR 85
Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43
Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 94
Humane Society International Inc v National Parks and Wildlife Service & Ors [2000] NSWADT 133
Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93
Mauger v Wingecarribee Shire Council [1999] NSWADT 35
McMahon v Director General, Department of Fair Trading [2003] NSWADT 164
Nationwide News Ltd v General Manager, Leichhardt Council [2003] NSWADT 76
Neary v State Rail Authority [1999] NSWADT 107
Neary v Treasurer NSW [2002] NSWADT 261
Odisho v Roads and Traffic Authority (NSW) [2001] NSWADT 49
Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74
Re Coonan and Commissioner of Taxation (2006) 90 ALD 472
Re Maher and Attorney-General’s Department (1985) 7 ALD 731
Re McEniery and Medical Board of Queensland [1994] 1 QAR 349
Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55
Ryder v Booth [1985] VR 869
Simpson v Director General, Department of Education and Training [2000] NSWADT 134
St Vincent Welch v CEO, Casino Control Authority [2001] NSWADT 89
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
University of New South Wales v McGuirk [2006] NSWSC 1362
Vranic v Department of Community Services [2001] NSWADT 129
Watkins v Roads and Traffic Authority (NSW) [2000] NSWADT 11
Wittingslow Amusements Group Pty Ltd v Director General, Environment Protection Authority (unreported, NSW Supreme Court, 23 April 1993)
WorkCover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502
Young v Wicks (1986) 79 ALR 448

REPRESENTATION:
APPLICANT
C Moschoudis, counsel
FIRST RESPONDENT
S Morris, solicitor
SECOND RESPONDENT
M Bonnell, solicitor

ORDERS: 1. The Tribunal sets aside the decision under review and orders:; (i) Documents 5, 8, 9, 11 and 12 (as identified in the Schedule dated 31 March 2006) are to be released, subject to deletions in accordance with these reasons.; (ii) The release of additional material is to take place 28 days after the date of this decision.; (iii) Access to documents 1, 2, 3, 4, 6, 7 and 10 is refused.; 2. Paragraphs 50, 54 and 59 of these reasons are to be disclosed only to the respondent Authority and its legal advisors and not be made available to the applicant, the second respondent, or published by the Tribunal.

1 On 18 August 2005 the applicant’s representative applied for access to documents under the Freedom of Information Act 1989 (the FOI Act) as follows:

1. That the Casino Control Authority were conducting four investigations into Star City’s business activities as follows:

a. One investigation relating to the termination of a supplier;

b. Two relating to complaints asserting that Star City Casino was engaged in unfair tendering processes;

c. One complaint made to radio station 2GB

2. Two show causes.

Our client requires further information concerning these matters, in particular all documents, materials and details touching and concerning:

A. The identity of the complainants;

B. The nature of the complaints;

C. The progress of investigations;

D. The outcome of the complaints.

2 On 30 August 2005 the New South Wales Casino Control Authority (the Authority, or CCA) advised the applicant’s representative that access to the information was refused on the basis that the information held by the Authority:

Affects business affairs

Affects law enforcement

Concerns internal working documents

Contains confidential material

Is subject to secrecy provisions

3 The determination referred to cl 12(1) of Schedule 1 to the FOI Act, and advised that disclosure of the information requested would contravene the secrecy provisions in section 148 of the Casino Control Act 1992 (the CC Act).

4 The applicant requested internal review, and on 28 September 2005 Mr David Brearley, Acting Manager Casino Review, advised that section 148(7) of the CC Act prevented the release of information concerning an investigation relating to the termination of a supplier and two investigations relating to complaints asserting that Star City Casino was engaged in unfair tendering process, and further that such documents were exempt under clauses 7, 9 and 13 of Schedule 1 to the FOI Act; that the Authority held no information concerning a complaint to radio station 2GB; and that information concerning the show causes was publicly available in the Authority’s 2000/2001 Annual Report. A copy of page 43 of the Annual Report was provided.

5 The applicant applied to the Tribunal for review. At the initial planning meeting the first respondent advised that consultation with third parties concerning some of the documents was ongoing.

6 On 31 March 2006 the respondent filed with the Tribunal written submissions, witness statements, and a schedule of documents the subject of the access request. The documents were described in the Schedule in the following terms:

2 Letter to CCA (11/9/98)

3 Interim report of Director of Casino Surveillance, Department of Racing and Gaming

4 Final report of Director of Casino Surveillance, Department of Racing and Gaming

5 CCA file note (15/4/99)

6 Letter from Star City to CCA (22/12/00)

7 Letter from Star City to CCA (15/1/01)

8 CCA Board paper (24/1/01)

9 Show cause notice (21/2/01)

10 Star City response to show cause notice (6/3/01)

11 CCA Board paper (21/3/01)

12 Letter from CCA to Star City (30/4/01)

7 The Schedule stated that in relation to documents 5 to 12, consultation was ongoing. In its written submissions, the Authority claimed that documents 2, 3 and 4 are not subject to the FOI Act, by virtue of s148(7)(a)(ii) of the CC Act; and that if they are subject to the FOI Act, would be exempt under clauses 7(1)(c) and 13(b) of Schedule 1 to the FOI Act. Document 1 was claimed to be exempt under clause 7(1)(c) of Schedule 1 to the FOI Act.

8 The Authority provided to the Tribunal copies of the documents listed in the Schedule, on a confidential basis. The Authority provided a certificate issued pursuant to s148(2)(a) of the CC Act certifying that it is in the public interest for the documents in the Schedule to be divulged to the Tribunal for the purpose of these proceedings, and that Mr David Brearley, Manager, Casino Review, divulge evidence contained in his confidential witness statement of 31 March 2006.

9 On 28 April 2006 Star City Pty Ltd (Star City) applied to be joined as a respondent to the proceedings under s67(4) of the ADT Act. The respondent Authority did not oppose joinder. The applicant opposed joinder, and a hearing was held on 12 July 2006. At the conclusion of the hearing I ordered that Star City be joined as a party to the proceedings, and made directions for filing and serving of submissions and witness statements.

10 The hearing on the substantive issues was held on 30 August 2006 and 28 September 2006. Oral evidence was given by Mr David Brearley, Manager, Casino Review in the Authority, and Mr John Boone, Purchasing Manager at Star City. While the matter was reserved, the Supreme Court of New South Wales delivered its decision in University of New South Wales v McGuirk [2006] NSWSC 1362. At a directions hearing on 20 February 2007 I advised the parties of my preliminary views on the substantive issues, and directed the parties to file written submissions addressing how, in light of the decision in University of New South Wales v McGuirk, a discretion to grant access to any document found to be exempt should be exercised.

11 These reasons address the four matters arising for determination in these proceedings:

(ii) whether documents 2, 3 and 4 are documents to which s148(7)(a)(ii) of the CC Act applies;

(iii) whether any of documents 1, 5, 6, 7, 8, 9, 10, 11 or 12 is exempt;

(iv) and if so, whether in the exercise of the discretion, the respondent Authority should be ordered to provide access to any document found to be exempt.

12 The substantive issues in this matter arise in the context of the administration of the CC Act. Star City holds the only casino licence issued under the CC Act to operate a casino. Under s141(2)(c) of the CC Act, the Authority has, as one of its specific functions:

(c) to keep under constant review all matters connected with casinos and the activities of casino operators, persons associated with casino operators, and persons who are in a position to exercise direct or indirect control over the casino operators or persons associated with casino operators.

13 The Authority has power to give directions to the casino operator (s29), to require the provision of information (s 32), and to conduct investigations (s30). Under s31 of the CC Act, the Authority is required to conduct an investigation every 3 years, and report as to whether the casino operator is a suitable person to continue to give effect to the casino licence, and it is in the public interest that the casino licence should continue in force. The Authority has power to take disciplinary action against the casino operator, including the cancellation or suspension of the licence, the imposition of a pecuniary penalty of up to $1,000,000, the amendment of the terms or conditions of the licence, or the issue of a letter of censure: s23 CC Act.

14 Div 2 Part 3 of the CC Act deals with contracts. Section 36 defines the relevant terms:

contract

controlled contract means a contract that relates wholly or partly to the supply of goods or services to a casino or to any other matter that is prescribed as a controlled matter for the purposes of this definition, but does not include:

(a) a contract that relates solely to the construction of a casino or to the alteration of premises used or to be used as a casino, or

(b) a contract of a class that is prescribed as exempt from this definition.

notifiable contract means a contract that would be a controlled contract but for the exceptions in paragraphs (a) and (b) of the definition of controlled contract in this section.

15 Under section 37 of the CC Act, a casino operator must not enter into or become a party to a controlled contract, or the variation of a controlled contract, relating to the casino, until the operator has given the Authority written notice of the details of the proposed contract or variation of contract and the investigation time that the Authority is allowed has elapsed. Section 37A applies to notifiable contracts, and provides that a casino operator must, within 14 days after the operator enters into or becomes a party to a notifiable contract, or the variation of a notifiable contract, relating to the casino, notify the Authority of that fact in writing giving the prescribed details of the contract or variation. Failure to comply with the requirements of section 37 and section 37A is a ground for disciplinary action under section 23 of the CC Act. As part of the procedure specified in section 23, the Authority may serve on the holder of a casino licence a notice in writing affording the licensee an opportunity to show cause within 14 days why disciplinary action should not be taken against the licensee on grounds for disciplinary action specified in the notice.

16 The Authority is subject to the provisions of the FOI Act, however this is subject to the particular provisions in s148 of the CC Act. The purpose of those provisions was identified in the second reading speech for the Casino Control Bill 1992, referring to the report of the Inquiry into the Establishment and Operation of Legal Casinos in NSW prepared by Sir Laurence Street:

Sir Laurence concluded that the public interest in open government is dominated by the public interest in the integrity of the casino industry and that the authority’s objects of ensuring that the casino industry remains free from criminal activity and dishonest gaming set it apart from the usual public authority. It is on the basis of Sir Laurence’s findings that the authority and the division of casino surveillance are not subject to the requirements for public access to their records. The Government believes that Sir Laurence put a compelling case for information held by these agencies to be exempt from freedom of information access. Instead, the bill grants the casino regulatory agencies a discretion to divulge information in the public interest.

17 Section 67(4) of the ADT Act provides:

(a) an original decision, or

(b) a review of a reviewable decision, or

(c) an external appeal,

a party to the proceedings, either of its own motion or on the written application of the person, if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision or are affected by the reviewable decision or the decision that is the subject of the external appeal.

18 The decision of the Authority on internal review under s24 of the FOI Act is a determination in respect of which a review application may be made under section 53 of the FOI Act, and is accordingly a “reviewable decision” as defined in section 8 of the ADT Act. The issue is whether Star City has “interests” that “are affected” by the reviewable decision.

19 In support of its application, Star City submitted that its interests are affected as the Tribunal’s decision may result in the release of the documents relevant to the applicant’s FOI application that relate to the business, commercial and financial affairs of Star City; contain information that is confidential to Star City; and may be used by the applicant in connection with a commercial dispute (and possibly in litigation) with Star City. Star City submitted:

The information in the documents relevant to the FOI Application relates to Star City’s tendering processes and the circumstances surrounding the termination of a supplier to Star City. This information is confidential to Star City. If these documents were released, it may impact on Star City’s future business dealings and compromise the confidentiality of its tendering processes. In addition to this, Star City’s interests are likely to be harmed by the release of the documents as the Applicant seeks to use them in connection with a commercial dispute (and possibly in litigation) with Star City.

20 The applicant submitted that Star City had failed to show that it has a genuine interest that would be affected by the relevant decision of the Tribunal, and that even if there were an interest affected, the Tribunal should, in the exercise of its discretion, not join Star City. The issue arose out of the supply of information under the CC Act, which gives authority to the Authority, and Star City could not contend that their future business dealings were compromised in relation to tendering processes. The applicant submitted that the interests asserted by Star City would not give rise to a sufficient stake in the proceedings. The applicant submitted that Star City had presented no evidence in support of its contentions that the documents contain information confidential to Star City.

21 The principles to be applied are set out in consideration of similarly worded legislation by the Administrative Appeals Tribunal in Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 at 79, in a passage cited with approval by the Federal Court in United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520:

Re McHattan and Collector of Customs (New South Wales)

Bilbao v Farquhar

22 As listed in the Schedule of 31 March 2006, documents 1, 6, 7, 9, 10 and 12 are correspondence between Star City and the Authority. In an affidavit dated 14 June 2006, Ms Louisa Blackwood, an employed solicitor at Mallesons Stephen Jaques, states that she has reviewed those documents, and has been informed by Michael Anderson, Legal Manager, NSW (Casinos Division) that they relate to the commercial affairs of Star City and contain information confidential to Star City. Neither the applicant nor Star City has had access to documents 2, 3, 4, 5, 8 and 11. Ms Blackwood states in her affidavit that she has not seen these documents, however she infers “from the context of the FOI Application and the nature and description of these documents that they elate to the commercial affairs of Star City and contain information that is confidential to Star City”. Ms Blackwood further states that she has reviewed correspondence between Star City and the applicant and its solicitors which indicates that the applicant is contemplating legal action against Star City.

23 The reviewable decision was that the documents sought by the applicant not be disclosed. In effect, Star City was seeking to be joined as a party to these proceedings to support the decision that the applicant not be given access to the documents. Section 67(4) of the ADT Act is not limited in terms to an adverse effect on interests. Its counterpart in section 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) has been interpreted to enable the joinder of a company with an interest in opposing release of documents in an FOI application because release would disclose its intellectual property: Re Coonan and Commissioner of Taxation (2006) 90 ALD 472. Star City’s ability to identify in argument the relevant “interest” affected was necessarily limited, as it has had access only to those documents which it had sent to or received from the Authority. It is clear from the submissions of the applicant and Star City, the affidavit of Ms Blackwood, and from the limited description of the documents in the Schedule, that the request for access was made against the background of a commercial dispute between the applicant and Star City, and that the documents the subject of the request relate to the tendering processes of Star City, and to the Authority acting in its regulatory capacity under the CC Act. I was satisfied that the documents related to matters relevant to the commercial interests of Star City, in the context of specific matters and more generally, and that the decision under review affected the interests of Star City.

24 Having determined that Star City has interests affected by the reviewable decision, I considered whether Star City should be joined. The onus in FOI matters is on the agency to establish that its determination is justified: section 61 ADT Act. At the time of the determination under review, the Authority was still engaged in consultation concerning documents 5 to 12. In written submissions filed on 31 March 2006 the Authority opposed the granting of access only to documents 1 to 4, and made no submissions concerning documents 5 to 12. In supplementary written submissions filed on 22 May 2006 the Authority did not object to the release of documents 5 to 12. I considered that it was likely that Star City would, as a party to the proceedings, be able to contribute to argument as to why the respondent Authority’s determination not to disclose any of the documents was the correct and preferable decision. I considered that any additional time or expense likely to be incurred through the participation of Star City would be minimal. As an organisation consulted by the Authority in accordance with its obligations under section 32(2) of the FOI Act, Star City would in any event have the right to appeal a determination by the Authority to grant access to documents affecting its business affairs: s53(3)(b)(ii) FOI Act. In those circumstances, there was a positive advantage in having the involvement of Star City in the determination of the substantive issues in these proceedings, and I ordered that Star City be joined as a respondent to the proceedings.

Documents 2, 3 and 4

25 The respondent Authority contends that documents 2, 3 and 4 are documents to which section 148(7)(a)(ii) of the CC Act applies. Section 148 provides:

148 Secrecy

(1) A person who acquires information in the exercise of functions under this Act must not, directly or indirectly, make a record of the information or divulge the information to another person, except in the exercise of functions under this Act.

Maximum penalty: 50 penalty units.

(2) Despite subsection (1), information may be divulged:

(a) to a particular person or persons, if the Authority certifies that it is necessary in the public interest that the information be divulged to the person or persons, or

(b) to a prescribed person or prescribed authority, or

(c) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates.

(2A) Information to which section 143C applies may not be divulged under subsection (2) except with the consent of the Commissioner of Police.

(3) A person cannot be required:

(a) to produce in any court any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s functions under this Act, or

(b) to divulge to any court any information that has come to the person’s notice in the exercise of the person’s functions under this Act.

(4) Despite subsection (3), a person may be required to produce a document or other thing in a court or to divulge information to a court if:

(a) the Authority certifies that it is necessary in the public interest to do so, or

(b) a person to whom the information relates (or to whom the information contained in the document or thing relates) has expressly authorised it to be divulged to or produced in the court.

(5) An authority or person to whom information is divulged under subsection (2), and a person or employee under the control of that authority or person, are, in respect of that information, subject to the same rights, privileges and duties under this section as they would be if that authority, person or employee were a person exercising functions under this Act and had acquired the information in the exercise of those functions.

(6) This section does not apply to the divulging of information to, or the production of any document or other thing to, any of the following:

(a) the New South Wales Crime Commission,

(b) the Independent Commission Against Corruption,

(c) the Australian Crime Commission,

(d) the Police Service or the police force of another State or a Territory,

(e) the Australian Federal Police,

(f) any other person or body prescribed for the purposes of this subsection.

(7) This section does not prevent a person being given access to a document in accordance with the Freedom of Information Act 1989, unless the document:

(a) contains matter the disclosure of which could reasonably be expected to do any of the following:

(i) prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case,

(ii) enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained,

(iii) prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or

(b) is a document the disclosure of which would disclose any of the following information:

(i) information concerning the business, commercial, professional or financial affairs of an applicant for a casino licence or a licence under Part 4,

(ii) information obtained in the course of an investigation of an application for such a licence,

(iii) information concerning the system of internal controls and administrative and accounting procedures for a casino.

(8) In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

26 The Authority submitted that documents 2, 3 and 4 fall within s148(7)(a)(ii), and relied on the decisions of the Tribunal in St Vincent Welch v CEO, Casino Control Authority [2001] NSWADT 89 and Chief Executive, Casino Control Authority; Star City & TABCORP v Preston [2003] NSWADTAP 64 to argue that they are excluded from the scope of the FOI Act. Star City adopted those submissions. The applicant submitted that the documents do not meet the requirements of s148(7)(a)(ii).

27 In Chief Executive, Casino Control Authority; Star City & TABCORP v Preston, Star City & TABCORP [2003] NSWADTAP 64, the Appeal Panel concluded that while the opening words of s 148(7) do not expressly exclude the documents covered by the subsection from the scope of the FOI Act, those words were intended to have that effect. The Appeal Panel observed:

46 Secondly, it is useful to consider the situation where all the matter or information in a document is outside the categories defined in paragraphs (a) and (b) of s 148(7), but the disclosure of such matter or information to the public at large would involve the person divulging it in the commission of an offence under s 148(1). The evident intent of s 148(7) is that such a document is not to be excluded from the operation of the FOI Act, but that individual members of the public should be able, despite the broad scope of the prohibition in s 148(1), to seek access to it ‘in accordance with’ this Act. The phrase ‘in accordance with’ implies that it will still be open to the CCA, as the relevant agency, to claim that it is an ‘exempt document’. Amongst other things, this may open the way for a decision, pursuant to s 25(4), that the exempt matter should be deleted and the edited document released. Alternatively, it may lead to the document being released in its entirety, or to access being wholly denied.

47 By contrast, the intent of s 148(7), as we interpret it, is to ensure that any document which contains ‘matter’ or ‘information’ falling within one or more of the six specified categories is intended to be set apart from this regime and from this range of alternative outcomes. A wholly different approach is implicitly intended, namely, that the document should, as the Tribunal itself said in passing at [38], be ‘excluded’ from ‘access under the FOI Act’.

48 Thirdly, on the footing that a document within s 148(7) is not to be treated as an ‘exempt document’ under cl 7 to Schedule 1 of the FOI Act, and therefore not as potentially open to the editing out of ‘exempt matter’ under s 25(4), there remains no basis for a decision that it could be so edited and then released. No other provision in either the FOI Act or the CC Act authorises such a procedure.

28 I accept the Authority’s submission that while assistance can be obtained in construing s 148(7)(a)(ii) from decisions concerning cl 4(1)(b) of Schedule 1 to the FOI Act, which is in the same terms, s 148(7)(a)(ii) must be construed in the context of the CC Act and its objectives. To do so is consistent not only with general principles of statutory interpretation, but with the legislative intention to set apart the six categories of documents identified in s 148(7) from the general FOI regime. The primary objects of the CC Act are set out in section 4A:

4A Primary objects of Act

(1) Among the primary objects of this Act are:

(a) ensuring that the management and operation of a casino remain free from criminal influence or exploitation, and

(b) ensuring that gaming in a casino is conducted honestly, and

(c) containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families.

29 The functions of the Authority include “to keep under constant review all matters connected with casinos and the activities of casino operators, persons associated with casino operators, and persons who are in a position to exercise direct or indirect control over the casino operators or persons associated with casino operators” (s 141(2)(c)); “to directly supervise and inspect the operations of a casino and the conduct of gaming in a casino” (s 141(2)(j)); and “to detect offences committed in or in relation to a casino and to prosecute offences under this Act” (s141(2)(k) CC Act). Part 3 of the CC Act sets out provisions for the Authority’s supervision and control of casino operators, including investigations, and requirements for contracts.

30 Mr David Brearley, Manager, Casino Review, Major Projects and Investigative Branch of the Authority, provided written statements (including a confidential statement) and gave oral evidence. In his open statement Mr Brearley outlined his current responsibilities in the following terms:

As Manager, Casino Review, I am responsible for, among other things, coordinating and carrying out reviews, audits and investigations for the Authority and the Casino Licence Oversight Committee in order to determine the ongoing suitability of the casino operator to hold a licence as outlined by the Casino Control Act 1992, the casino licence and legal agreements between the Authority and the casino operator. In particular, I am responsible for conducting major and/or significant investigations into the casino, casino operations, the casino operator and associates of the casino operator in accordance with s.30 of the CC Act.

31 Mr Brearley states that he has held this position since 1 March 2006 having previously acted in the position for a period of 7 months. Before that, he had been Manager, Financial Investigations (since November 2002), and Manager, Audit (since July 2001). From 1995 to 2001 he held various positions within the Casino Surveillance Division including Supervisor, Licensing and Manage, Licensing. In paragraphs 7 to 10 of his open written statement Mr Brearley states:

8 On 9 November 1998, the DCS [Director of Casino Surveillance] issued an interim report into the allegations (the interim report is document 3). While it is apparent from this report that the Authority requested the DCS to investigate the allegations by letter dated 24 September 1998, the Authority does not have any record of this letter in its file.

9 Until 1 July 2001, the CC Act provided for the appointment of the DCS. This was supported by the Casino Surveillance Division and formed part of the Department of Gaming and Racing. The DCS was tasked with directly supervising and inspecting the operations of a casino and the conduct of gaming. It had a number of functions, including reporting generally to the Authority and the Minister on the administration of the Act, as well as assisting the Authority generally, as the Authority saw fit. The Authority frequently used the DCS in order to conduct investigations on its behalf.

10 The DCS issued a final report on 5 March 1999 (the final report is document 4). Both the interim and final reports address additional allegations made to the DCS during the investigation.

32 Paragraphs 11 to 15 of the written statement deal with the issue of confidentiality:

12 It is not investigative practice to reveal the identity of an informant to other persons and, in my view, the Authority would not do so, not least because of s 148 of the CC Act.

13 In July 1995 the Authority determined protocol to be observed by the DCS when conducting particular investigations. These were operative in 1998 although they ceased to have application following the amalgamation of the office of the DCS with the Authority on 1 July 2001. While not directly applicable to the investigations carried out in this case, they demonstrate that the Authority’s investigations were carried out in an atmosphere of strict confidentiality. I have annexed extracts from this protocol to my confidential statement and have set out further evidence in relation to this therein.

14 The Authority encourages the provision of information to it by third parties to assist it in carrying out its statutory functions. Third party information is considered significant and treated seriously, especially in relation to investigations under s 31, where third parties make submissions to the Authority, as well as gaming matters. The Authority expressly invites the provision of information to government inspectors about gaming matters. A copy of a brochure entitled ‘Government Inspectors at Star City Casino’, available at the casino, is Annexure “B”. A similar document is available on the Authority’s website. It is less common for the Authority to receive third party information outside these contexts, although it does occur from time to time.

15 While the Authority depends upon and uses a variety of investigative methods, I believe its function of investigation, review and assessment would be hampered if complainants cannot be assured of the confidentiality of their communications with the Authority. This is particularly the case with respect to submissions made during s 31 investigations.

33 I have examined documents 2, 3 and 4. The maker of allegations concerning a casino tender process is clearly identified in each of these documents. The first issue is whether this is a “confidential source of information”. In Department of Health v Jephcott (1985) 8 FCR 85 Foster J commented that “a source is confidential if the information was provided under an express or implied pledge of confidentiality”. In Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35, President O’Connor DCJ adopted the analysis of the Queensland Information Commissioner in Re McEniery and Medical Board of Queensland [1994] 1 QAR 349 at 371. That approach requires consideration of all the relevant circumstances, including:

…the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer …, whether it could reasonably have been understood by the informant and the recipient that the appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subject to harassment or other retributive action or could otherwise suffer detriment if the informant’s identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential … .

34 I accept the evidence of Mr Brearley that the Authority encourages the provision of information to it by third parties to assist it in carrying out its statutory functions, and that it conducts its investigations in a confidential manner. As noted in Mr Brearley’s statement, one of the documents includes the words “Private and Confidential”, which supports an understanding that the identity of the source, and/or the contents of the allegation, would be confidential. I am satisfied that these documents enable the identity of a confidential source of information to be ascertained.

35 The next issue is whether the confidential source of information is “in relation to the enforcement or administration of the law”. There are decisions of this Tribunal which have taken a narrow view as to the scope of these words in the context of the application of the exemption in cl 4(1)(b) of Schedule 1: see for example, Watkins v Roads and Traffic Authority (NSW) [2000] NSWADT 11, BY v Attorney General’s Department (No 2) [2003] NSWADT 37. Other decisions have adopted a broader view, including information concerning child protection, and information concerned with the process of legal rights and duties: see Vranic v Department of Community Services [2001] NSWADT 129, Odisho v Roads and Traffic Authority (NSW) [2001] NSWADT 49. The issue in these proceedings arises under the CC Act, and the words should be interpreted in the context of that Act. Section 4A sets out the objects of the CC Act. Under section 140 of the CC Act, the objects of the Authority are to maintain and administer systems for the licensing, supervision and control of a casino, for the purpose of ensuring that the management and operation of the casino remains free from criminal influence or exploitation, ensuring that gaming in the casino is conducted honestly, and containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families. I accept the submission of the respondent Authority that the allegations raised in documents 2, 3 and 4 are directly related to the Authority’s mandate that it keep matters connected with casinos and the activities of casino operators under constant review, and that in investigating the allegations, the Authority was “ensuring that the management and operation of the casino remains free from criminal influence or exploitation” as required by section 140(a) of the CC Act. I also agree that while at the time the allegations were made in 1998 the Authority’s investigative functions were vested in the DCS, the Authority had, at that time, the specific function of keeping matters connected with casinos and casino operators under constant review. While the matter was referred to the DCS for investigation and report, the ultimate decision as to what action should take place as a result of this was a matter for the Authority.

36 I am satisfied that documents 2, 3 and 4 contain matter the disclosure of which could reasonably be expected to enable the identity of a confidential source of information in relation to the enforcement or administration of the law to be ascertained. That means that section 148(7)(a)(ii) of the CC Act applies, and the provisions of the FOI Act do not apply to these documents. This conclusion makes it unnecessary to decide whether or not documents 2, 3 or 4 would be exempt documents under the FOI Act.

Documents 1, 5-12

37 Under s16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency’s documents. This right is subject to other provisions of the FOI Act, in particular s25(1)(a), under which an agency can refuse access to a document if it is an exempt document. Section 25(1) is qualified by s25(4) of the FOI Act, which provides:

(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.

38 Section 25(1) confers a discretion, and an agency may decide to provide access to a document notwithstanding that the document is an exempt document. In University of New South Wales v McGuirk, Nicholas J held that s63 of the ADT Act provides the Tribunal with the discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it. Nicholas J approved the following passage from Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93:

85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.

39 While s61 of the FOI Act provides that the agency has the onus of establishing that its determination was justified, it is not yet clear whether this obligation extends beyond the onus of establishing the claims to exemption, to establishing that the overriding discretion should not be exercised. This is discussed further below.

40 The respondent Authority contends that document 1 is exempt under cl 7(1)(c) of Schedule 1 to the FOI Act. The respondent Authority’s submissions filed on 31 March 2006 do not address documents 5 to 12, and the Authority does not oppose their release. Star City has adopted the Authority’s submissions in relation to document 1. Star City contends that documents 5 to 12 are exempt under cl 7(1)(c) of Schedule 1, and also under cl 13(b) of Schedule 1 to the FOI Act. Star City has not had access to documents 5, 8 or 11, and its submissions concerning those documents were as a consequence limited. The applicant contends that none of the documents are exempt.

41 Clause 7 of Schedule 1 states:

7 Documents affecting business affairs

(1) A document is an exempt document:

(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or

(a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or

(b) if it contains matter the disclosure of which:

(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

42 For cl 7(1)(c) to apply, both subparagraphs (i) and (ii) must be satisfied. For subparagraph (i) to be met, the document must contain matter the disclosure of which would disclose information “concerning” the business, professional, commercial or financial affairs of an agency or any other person. The term “business affairs” generally relates to the conducting of a business or the carrying on of a commercial operation: Young v Wicks (1986) 79 ALR 448. In Wittingslow Amusements Group Pty Ltd v Director General, Environment Protection Authority (unreported, NSW Supreme Court 23 April 1993), Powell J noted:

…the general purpose sought to be fulfilled by s 32, in conjunction with cl 7 of Schedule 1 of the FOI Act, is to protect (inter alia) persons or companies such as the plaintiffs from the commercial disadvantage which they might suffer if commercially sensitive, or commercially valuable, information which they have provided, directly or indirectly, to an agency were to be disclosed.

43 Subparagraph (ii) requires consideration of the effect of disclosure on those business affairs. The question of what constitutes an “unreasonable adverse impact” was considered by O’Connor DCJ in Neary v State Rail Authority [1999] NSWADT 107, at [35]:

An objective view must be brought to bear on an agency’s claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - ‘expect’ - carries a firmer connotation than words such as ‘anticipates’, it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances.

44 As an alternative, subparagraph (ii) can be met if disclosure could reasonably be expected to prejudice the future supply of information to the Government or an agency. The issue of prejudice to the future supply of information was considered in relation to the Commonwealth legislation equivalent to cl7(1)(c)(ii) in Attorney-General’s Department v Cockcroft (1986) 64 ALR 97 at 106, where Bowen CJ and Beaumont J held:

In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act.

45 Clause 13 of Schedule 1 provides:

13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) if it contains matter the disclosure of which:

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

46 In its written submissions the Authority noted that cl.13(b)(i) raises similar issues to those arising under s148(7)(a)(ii) of the CC Act in determining whether a source of information is “confidential”, and submitted that the terms of the document in issue, the nature of the information, the purpose for which the information was provided and the circumstances in which it was provided, must be considered: see Ryder v Booth [1985] VR 869 at 878. In Simpson v Director General, Department of Education and Training [2000] NSWADT 134, DP Hennessy concluded that the words “obtained in confidence” in cl.13(b) refer to information obtained under an express or inferred understanding that it would be kept confidential: see also Re Maher and Attorney-General's Department (1985) 7 ALD 731. Both cl.7(1)(c) and cl.13(b) require consideration of future supply of information to a government agency. In that regard 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; Ryder v Booth [1985] VR 870; Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341. Clause 13(b) imposes a further requirement, namely that the disclosure would, on balance, be contrary to the public interest.

47 In its written and oral submissions Star City argued that the applicant’s dominant purpose in pursuing the FOI request for access has been to obtain information to be used in a commercial dispute between Star City and the applicant. Star City argues that the proceedings are an abuse of the FOI legislation. Section 16 of the FOI Act enables “any person” to apply for access to a document, and generally an applicant’s motive for requesting access to documents has no relevance to ascertaining whether a document is an exempt document: Nationwide News Pty Ltd v General Manager, Leichhardt Council [2003] NSWADT 76. To the extent that an applicant’s motive in seeking access is relevant it appears from decisions of this Tribunal that this may be in determining the question of reasonableness in the context of disclosure of information concerning the personal affairs of a person other than the applicant: Humane Society International Inc v National Parks & Wildlife Service & ors [2000] NSWADT 133;Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43; Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 94; Dawson v Commissioner Health Care Complaints [1999] NSWADT 57. The exemption provided in cl.6 of Schedule 1 to the FOI Act refers to “unreasonable disclosure of information” relating to a person’s personal affairs. Clause 7(1)(c) and cl.13(b) are drafted on a different basis, and focus on the effect of disclosure, whether on business affairs or on future supply of information. I am not persuaded that an applicant’s motive is relevant in determining whether either of these exemptions applies. It may, however, be relevant in considering, against the objects of the FOI Act, whether or not the override discretion should be exercised in a particular case.

48 The respondent Authority provided copies of all documents on a confidential basis, and I have examined those documents. Under s55 of the FOI Act, the Tribunal is required to ensure that it does not disclose, in reasons for decision or otherwise, any exempt matter. Accordingly, some paragraphs in these reasons are to be made available only to the respondent Authority, and not to be made available to either the applicant or Star City, or in publication generally.

49 Document 1: The Authority submitted that disclosure of document 1 would disclose information concerning the business affairs of a supplier to Star City, and that the content of the information would have an adverse impact on that supplier’s business affairs by reason of its effect on its business reputation. Disclosure of document 1 would also disclose information concerning the commercial and business affairs of Star City, namely termination of a supplier, and release of such information would have an adverse effect on Star City’s future business dealings, particularly with suppliers. The applicant submitted that as the only licensed casino operator, Star City is a monopoly, and would suffer no competitive disadvantage if the information in the documents were to be disclosed. In oral submissions Star City’s representative argued that disclosure would have an unreasonable adverse impact on two grounds. First, unless documents concerning suppliers were confidential, commercial competitors of suppliers to Star City could seek to obtain commercial information and then complain to the Authority, using FOI to trawl through the documents. Star City has a vast number of suppliers, and at the time of the presentation there were over 400 controlled contracts. Secondly, the applicant is seeking access to the documents in pursuit of litigation, with none of the restrictions that would be imposed on pre-trial discovery.

50 Subject to suppression order

51 Having examined document 1, I agree with the respondent Authority that disclosure of the document would disclose information concerning the business affairs of a supplier to Star City, and could reasonably be expected to have an unreasonable adverse effect on those affairs. I agree with the Authority’s submissions that disclosure would also disclose information concerning Star City’s business affairs, namely its dealings with a supplier in a particular context. There is more than “a mere risk” that disclosure of this information could be expected to have an effect on Star City’s relationships with future suppliers, and thus have an adverse effect on its business affairs. Document 1 is exempt under cl7(1)(c) of Schedule 1 to the FOI Act.

52 I have considered whether, in accordance with s25(4) of the FOI Act, it is practicable to give access to document 1 with deletions. In my view it is not practicable to delete exempt matter. While the identity of the supplier could possibly be deleted, the nature of Star City’s dealings with that supplier would remain, and in my view disclosure of that information could reasonably be expected to have an unreasonable adverse effect on Star City’s business and commercial affairs.

53 Document 5: Document 5 is identified in the Schedule as being a “CCA file note (15/4/99)”. For the reasons outlined in the next paragraph, access should be given to document 5 with the deletion of the second line of the heading to that document.

54 Subject to suppression order

55 Documents 6 and 7: Documents 6 and 7 are letters addressed to the Authority from Star City. Each identifies a third party. As noted in the affidavit of Mr David Brearley, neither entity opposed disclosure. Star City opposed disclosure on the basis that disclosure of financial and management details of contracts with certain suppliers would have an unreasonable adverse effect on Star City’s future business dealings, by diminishing Star City’s bargaining power with future suppliers, and on Star City’s business, because of the release of confidential documents to a hostile third party.

56 Mr John Boone, Purchasing Manager of Star City, provided an affidavit in which he stated that he is the author of documents 6 and 7 and has reviewed documents 9, 10 and 12. Mr Boone stated that he believes that these documents

(i) information relating to two Show Cause Notices issued to Star City;

(ii) information relating to the financial and management details of two contracts that Star City had with certain suppliers; and

(iii) information relating to the internal policies and procedures that have been introduced by Star City in order to prevent breaches of the Casino Control Act 1992 (NSW).

57 Mr Boone gave oral evidence, and was questioned about a presentation he made to a Contracts 2004 seminar in February 2004, titled Procurement Planning and Contract Management for a Growing and Complex Business – the Star City Experience. One slide in this presentation is headed “CCA Issues”, and states:

One due to a termination of a Supplier

Two due to Complaints from Suppliers for an “Unfair Tender Process”

One due to a complaint to Radio 2GB

Two show causes

58 Mr Boone stated that as part of the presentation he talked about controlled contracts and notifiable contracts, and the casino’s obligations and procedures under section 36 to 42 of the CC Act. Mr Boone stated that at the time of the presentation, none of the four investigations were current. He did not identify any suppliers. Star City requires its suppliers to sign a confidentiality clause. Mr Boone agreed that Star City had an obligation to disclose information to the Authority.

59 Subject to suppression order

60 Documents 6 and 7 contain information concerning the business and commercial affairs of both Star City, and the suppliers identified in those documents. On my consideration of the documents, regardless of any potential adverse effect on the identified suppliers, the disclosure of information concerning Star City’s dealings with those suppliers could have an adverse effect on Star City’s future dealings with suppliers, and thus have an adverse effect on Star City’s business affairs.

61 Whether disclosure of this information could reasonably be expected to have an unreasonable adverse effect of the business affairs of Star City depends on a number of factors. First, the matters arose in 2000 and 2001, and are not current. Some of the information is already in the public domain, having been included in the Authority’s Annual Report 2000/2001, and in the Authority’s Report of Investigation pursuant to s31 of the Casino Control Act 1992 dated December 2003. I am not satisfied that disclosure of the content of documents 6 and 7 (leaving to one side the identification of the suppliers) could reasonably be expected to have an adverse effect on Star City’s business affairs.

62 Clause 7(1)(c)(ii) also requires consideration of the effect of disclosure on the future provision of information. Star City is required under the CC Act to provide information to the Authority in certain circumstances. However, as noted above, the issue is not whether Star City would provide similar information in future, but whether the Authority will be able to obtain such information in the future. The public interest in the integrity of the casino industry referred to by Sir Laurence Street requires that the broadest range of information be provided to the Authority, whether by the casino operator or by others. Documents 6 and 7 contain detailed information, and I am satisfied that it is reasonable to expect that disclosure of that information could have a detrimental effect on the nature, and extent, of future information provided to the Authority. Documents 6 and 7 are exempt under cl.7(1)(c). I do not consider it practicable to delete any part of documents 6 or 7.

63 Documents 8, 9, 11 and 12: Documents 8, 9, 11 and 12 contain information concerning the business affairs of Star City, and identified suppliers. Apart from the identity of the suppliers, most of the information contained in these documents is already in the public domain, and I am not satisfied that disclosure now could reasonably be expected to have an adverse effect on Star City’s business affairs. The issue then is whether the identification of the suppliers could have that effect. As noted above, the other parties identified in the documents do not object to disclosure. While their views are relevant, they are not determinative. Mr Boone gave evidence that Star City requires suppliers to sign a confidentiality clause. While I do not have any evidence as to the terms of such agreements, I accept Mr Boone’s evidence in that regard. Having regard to that, and the context in which Star City is operating, I am satisfied that disclosure of the identity of the suppliers could be expected to have an adverse effect on Star City’s future dealings with suppliers, and thus its business or commercial affairs. However, I consider that it is practicable to delete the information identifying the suppliers.

64 I have also considered whether documents 8, 9, 11 and 12 are exempt under cl.13(b) of Schedule 1. I am satisfied that while the documents are not a direct communication from Star City to the Authority, they contain information provided to the Authority by Star City. In the context of Star City’s confidentiality agreements with its suppliers, I accept Star City’s submissions that this information was provided on the expectation that it would remain confidential. I am satisfied that this information was obtained by the Authority in confidence, as required by cl.13(b)(i). For the reasons outlined in relation to documents 6 and 7, I am satisfied that it is reasonable to expect that disclosure of some of the information contained in these documents could reasonably be expected to have a detrimental effect on the nature, and extent, of future information provided to the Authority. Clause 13(b)(iii) requires consideration of the public interest. Star City submitted that the public interest in maintaining a system for licensing, supervision and control of the casino operator which requires communications between the operator and the Authority that include sensitive information to remain confidential unless disclosure is required by law, outweighs the public interest in disclosure. I accept that submission. However, in considering the balancing of competing public interests in this matter, it is relevant that most of the information contained in these documents, other than the identity of the suppliers is already in the public domain. The matters referred to arose in 2000 and 2001, and are no longer current. In those circumstances, I am not satisfied that disclosure of matter other than the identity of the suppliers would be contrary to the public interest. It is practicable to delete the information identifying the suppliers, and access should be given in that form.

65 Document 10: As noted above, the Authority did not object to disclosure of document 10; Star City contends that it is exempt under cl.7(1)(c) and cl.13(b); and the applicant contends that neither exemption applies. On my examination of document 10 it contains, among other things, information concerning administrative and accounting procedures put in place by Star City. While neither the Authority nor Star City raised this issue, the review task identified in s63 of the ADT Act requires that I consider whether this information falls within s148(7)(b)(iii) of the CC Act, set out in paragraph 25 above.

66 Subparagraphs 148(7)(b)(i) and (ii) are clearly focussed on information obtained by the Authority as part of, or during, an application process. Subparagraph (iii) is not in terms limited to the application process, and refers simply to “the system of internal controls and administrative and accounting procedures for a casino”. The extrinsic material is of some assistance in considering whether these words should have a limited meaning: s34(1)(b) Interpretation Act1987. The Minister’s second reading speech contains the following passage:

Also on Sir Laurence's recommendations, the bill restricts public access to information held by the authority and the division of casino surveillance. Certain types of documents are placed outside the scope of the Freedom of Information Act, namely, documents which could prejudice investigation of any breach or possible breach of the law; documents which would divulge the existence or identity of any confidential source of information on law enforcement; documents which could prejudice the effectiveness of lawful methods or procedures for preventing, detecting, investigating or dealing with any breach or possible breach of the law; documents which would disclose information on the business, commercial, professional or financial affairs of an applicant for a casino licence or a casino employee's licence; documents which would disclose information obtained in the course of investigating an application for a casino licence or a casino employee's licence; documents containing information on the system of internal controls and administrative and accounting procedures for a casino.

67 The report prepared by Sir Laurence Street, to which the second reading speech referred, is of greater assistance. As quoted in the Authority’s submissions, Sir Laurence commented:

…

8.3.7 Other information acquired by the Authority in the course of investigation of licence applicants and relevant to ongoing monitoring will be untested criminal intelligence. If it is to be fully effective the Authority needs full access to such information. The doubt about maintenance of any protection from access when it is transferred to the Authority has been referred to above. I can envisage a reluctance by organisations to give information in circumstances when its secrecy cannot be guaranteed. (emphasis added)

68 Having regard to that report, and construing s148(7)(b)(iii) in the context of the objects of the CC Act (which include concerns with the management and operation of a casino), I consider that subparagraph (iii) applies to information concerning ongoing controls and accounting and administrative procedures of the casino, and is not limited to information that may be obtained during the course of consideration of an application. A casino operator may need to modify its internal controls or procedures during the course of its operations to avoid the risk of the harms identified by Sir Laurence. The words should be construed by reference to their ordinary meaning, and are not limited to the specific type of information referred to by Sir Laurence Street in para 8.3.7 of his report. I am satisfied that document 10 contains information concerning the internal controls and administrative and accounting procedures of Star City. The document falls within s148(7)(b)(iii) of the CC Act, and accordingly the provisions of the FOI Act do not apply to this document.

Discretion

69 The respondent Authority formally recorded a submission that the decision in University of New South Wales v McGuirk is incorrect for, among others, the reasons expressed in Neary v Treasurer NSW [2002] NSWADT 261. However, the Authority’s submissions proceeded on the basis that the Tribunal is bound by the decision in UNSW. In summary, the Authority submitted that the scope of the discretion to grant access to exempt documents is governed by the following matters:

(ii) the decision must decide whether there is something special about the information itself or the surrounding circumstances which persuades him or her that access to the documents should be granted; and

(iii) the considerations which the decision-maker may take into account in undertaking this exercise are confined by the scope and objects of the FOI Act.

70 The Authority relied on the reasoning in Mangoplah, in particular paragraphs 90 and 91, to support matters (i) and (ii). Matter (iii) requires a balancing, as explained by McColl JA (with whom Handley and Hodgson JJA agreed) in WorkCover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLE 502 at 534:

News Corporation Ltd v National Companies and Securities Commission

71 In particular, the Authority submitted that the reference to the “public interest” in Mangoplah is misleading and of limited utility.

72 In further supplementary submissions in reply (filed on 28 March 2007), the respondent Authority referred to the decision in Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55, and submitted that Handley ADP was correct in deciding that the exercise of the residual discretion only arises once the Tribunal has found that a particular document is exempt; it should only be exercised where there are strong grounds justifying the overriding of an exemption; and the discretion is to be considered in light of the objects of the FOI Act. The respondent Authority submitted that Handley ADP’s reference to “the public interest” as a matter relevant to whether strong grounds exist is not found in s5 of the FOI Act and is erroneous, and that in considering s5(2)(b), the test is whether non disclosure is reasonably necessary for the proper administration of the Government.

73 Star City adopted the respondent Authority’s supplementary submissions filed on 7 March 2007, and submitted that the documents should not be disclosed because:

(b) the applicant had not demonstrated that there is “some reason particular to the circumstances” that would persuade the tribunal to order the disclosure of the documents.

74 In response to the submissions of the respondent Authority and Star City, the applicant relied on Mangoplah, in particular paragraph 91:

Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption. I would not see the question as necessarily suggesting that such a release would be rare, unusual or exceptional. In some areas of government, there may be many documents which fall within an exemption but, for example, whose public interest in release is overwhelming, or whose potential for relevant damage is so obviously remote as to leave disclosure totally innocuous.

75 The applicant submitted that if the reasoning in Mangoplah is adopted the Tribunal must merely identify “some reason particular to the circumstances”; if the test in UNSW is applied, it would be the “correct and preferable” test. The applicant urged the Tribunal to exercise the discretion to release the documents sought.

76 In considering whether any of documents 1, 6 or 7 should be released, I have had regard to the objects of the FOI Act, which are set out in s5:

(a) to obtain access to information held by the Government, and

(b) 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.

(2) The means by which it is intended that these objects are to be achieved are:

(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament:

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

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

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.

77 Section 61 of the FOI Act states that the burden of establishing that an agency’s determination is justified lies on the agency. While the decision in UNSW does not address this issue, in locating the override discretion in the Tribunal’s general powers under s63, it could be argued that this has to be determined by considering the arguments for and against disclosure. There is no explicit requirement for the Tribunal to consider whether “the public interest” requires that access be given to a document, as is the case under the Victorian legislation: s50(4) Freedom of Information Act 1982 (Vic). I agree with the Authority’s submissions that s5(3)(b) requires a balancing between the enforceable right to access to documents and the requirements of the proper administration of the Government. Here, the proper administration of the Government includes the proper oversight and control of a casino, operating in the environment described in the report of Sir Laurence Street. Having already concluded that disclosure of document 1 could reasonably be expected to have an unreasonable adverse effect on the business affairs of Star City, and that disclosure of the information contained in documents 6 and 7 could have a detrimental effect on the nature, and extent, of future information provided to the Authority, it is difficult to envisage circumstances in which disclosure might be appropriate. If the motive of the applicant in seeking access is relevant, the background commercial dispute between the applicant and Star City does not provide a reason in favour of disclosure. I am not satisfied that there is any reason particular to these circumstances as to why the exemption should not be claimed.

Order

(ii) The release of additional material is to take place 28 days after the date of this decision.

(iii) Access to documents 1, 2, 3, 4, 6, 7 and 10 is refused.

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Citations

Ranier Pty Ltd New South Wales Casino Control Authority and anor [2007] NSWADT 118

Most Recent Citation

Thompson v Ministry of Transport [2009] NSWADT 185

Cases Citing This Decision

2

Department of Education and Training v GJ (GD) [2009] NSWADTAP 33

Thompson v Ministry of Transport [2009] NSWADT 185

Cases Cited

26

Statutory Material Cited

5

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

Levy v Victoria [1997] HCA 31

CITATION:	Ranier Pty Ltd New South Wales Casino Control Authority and anor [2007] NSWADT 118
DIVISION:	General Division
PARTIES:	APPLICANT Ranier Pty Ltd FIRST RESPONDENT New South Wales Casino Control Authority SECOND RESPONDENT Star City Pty Ltd
FILE NUMBER:	063009
HEARING DATES:	12 July 2006, 30 AUgust 2006, 28 September 2006
SUBMISSIONS CLOSED:	28 March 2007
DATE OF DECISION:	6 June 2007
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	access to documents - business affairs - access to documents - confidential material - access to documents - secrecy provisions - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - secrecy provisions - Joinder of Parties
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Casino Control Act 1992 Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989 Interpretation Act 1987
CASES CITED:	BY v Attorney General’s Department (No 2) [2003] NSWADT 37 Chief Executive, Casino Control Authority; Star City & Tabcorp v Preston [2003] NSWADTAP 64 Dawson v Commissioner Health Care Complaints [1999] NSWADT 57 Department of Health v Jephcott (1985) 8 FCR 85 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 94 Humane Society International Inc v National Parks and Wildlife Service & Ors [2000] NSWADT 133 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Mauger v Wingecarribee Shire Council [1999] NSWADT 35 McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 Nationwide News Ltd v General Manager, Leichhardt Council [2003] NSWADT 76 Neary v State Rail Authority [1999] NSWADT 107 Neary v Treasurer NSW [2002] NSWADT 261 Odisho v Roads and Traffic Authority (NSW) [2001] NSWADT 49 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 Re Coonan and Commissioner of Taxation (2006) 90 ALD 472 Re Maher and Attorney-General’s Department (1985) 7 ALD 731 Re McEniery and Medical Board of Queensland [1994] 1 QAR 349 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 Ryder v Booth [1985] VR 869 Simpson v Director General, Department of Education and Training [2000] NSWADT 134 St Vincent Welch v CEO, Casino Control Authority [2001] NSWADT 89 United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 University of New South Wales v McGuirk [2006] NSWSC 1362 Vranic v Department of Community Services [2001] NSWADT 129 Watkins v Roads and Traffic Authority (NSW) [2000] NSWADT 11 Wittingslow Amusements Group Pty Ltd v Director General, Environment Protection Authority (unreported, NSW Supreme Court, 23 April 1993) WorkCover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 Young v Wicks (1986) 79 ALR 448
REPRESENTATION:	APPLICANT C Moschoudis, counsel FIRST RESPONDENT S Morris, solicitor SECOND RESPONDENT M Bonnell, solicitor
ORDERS:	1. The Tribunal sets aside the decision under review and orders:; (i) Documents 5, 8, 9, 11 and 12 (as identified in the Schedule dated 31 March 2006) are to be released, subject to deletions in accordance with these reasons.; (ii) The release of additional material is to take place 28 days after the date of this decision.; (iii) Access to documents 1, 2, 3, 4, 6, 7 and 10 is refused.; 2. Paragraphs 50, 54 and 59 of these reasons are to be disclosed only to the respondent Authority and its legal advisors and not be made available to the applicant, the second respondent, or published by the Tribunal.