Retain Beacon Hill High School Committee Inc v Department of Commerce (GD)
[2006] NSWADTAP 58
•23/11/2006
Appeal Panel - Internal
CITATION: Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58 PARTIES: APPELLANT
Retain Beacon Hill High School Committee Inc
RESPONDENT
Department of CommerceFILE NUMBER: 069029 HEARING DATES: 08/08/06 SUBMISSIONS CLOSED: 08/08/2006
DATE OF DECISION:
11/23/2006BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Blake C - Non Judicial Member CATCHWORDS: adequacy of reasons - application of government policy - procedural fairness MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053325 DATE OF DECISION UNDER APPEAL: 05/02/2006 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Landcom Corporation Act 2001CASES CITED: Retain Beacon Hill High School Committee Inc. v NSW Department of Commerce [2006] NSWADT 129
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Woodside & anor v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8
Minister for Community Services v CE (No.1) (CSD) [2002] NSWADTAP 7
Commissioner for Fair Trading, Office of Fair Trading v Cromwell’s Auctioneers & Appraisals Pty Limited (GD) [2005] NSWADTAP 25
Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378
Vincent Neary v State Rail Authority [1999] NSWADT 107
Freeland v General Manager, Liverpool City Council [1999] NSWADT 95
Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37
Cianfrano v Director General, NSW Treasury [2005] NSWADT 7
Raethel v Director General, Department of Education and Training [1999] NSWADT 108
CH Real Estate Pty Ltd (t/a Raine & Horne Commercial, Penrith) v Penrith City Council [2005] NSWADT 147
David Miles Connolly v Department of Finance No 94/50 AAT no 9571
Wilson v Department of Education (District Court (Smyth J), unreported, 21 December 1989)
Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195
The News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor (1992) 36 FCR 111
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 480
Commissioner of Police v District Court of New South Wales & Anor (1993) 31 NSWLR 606
Harris v Australian Broadcasting Corporation (1983) 78 FLR 236REPRESENTATION: APPELLANT
RESPONDENT
R Cianfrano, agent
A Johnson, solicitor, Crown Solicitor’s OfficeORDERS: Appeal dismissed
REASONS FOR DECISION
1 In 2001 the Government announced its decision to close in the near future the Beacon Hill High School, located in the northern beaches area of Sydney, as part of a high schools amalgamation program for the region. Controversy ensued. As its name suggests, the appellant, the Retain Beacon Hill High School Committee (the Committee) opposed the closure. The closure proceeded.
2 The Government decided to dispose of the school land in two tranches. It decided to sell the open land to the local council, the Warringah Council, for redevelopment as a public park. It decided to sell the land occupied by the school’s buildings to a developer, Landcom, a ‘State Owned Corporation’ established by Landcom Corporation Act 2001. The intention is to redevelop the site into about 27 residential apartments, and sell them. The Committee now questions the adequacy of this aspect of the sale process.
3 The Department of Education and Training (DET) and Landcom have entered into a conditional contract of sale. Completion depends on various matters, including the grant of planning approvals. The Committee has been provided with the development application lodged with the Warringah Council.
4 The respondent agency (the agency) combines a number of previous agencies of government including the old Department of Public Works (DPW). DPW was an adviser to DET in respect of the sale, and provided valuation advice. One of the Committee’s objections to the transaction is that it did not proceed by an open, public tender.
5 The Committee applied, through Ms Covey under the Freedom of Information Act 1989 (FOI Act) by letter dated 28 February 2005, to the agency for access to the following documents:
6 The agency released a large number of documents. The Committee applied to the Tribunal for review of the determination in respect of the documents refused.
‘All documents and communications in relation to the NSW Government High School defined as, Beacon Hill High School from 1 January 2000 to 28 February 2005.
These documents are to include the following,
1. All phone call records,
2. All file notes,
3. All diary notes,
4. All faxes transmission records,
5. All memos records,
6. All email records,
7. And all bits of paper etc;’
7 On review, the Tribunal substantially upheld the agency’s determination: Retain Beacon Hill High School Committee Inc. v NSW Department of Commerce [2006] NSWADT 129. The Tribunal’s orders were:
8 The Committee now appeals. An appeal may be made on a question of law and, with the leave of the Appeal Panel, may be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. The Appeal Panel’s discretion to extend to the merits is not fettered by any need to demonstrate an error of law or an arguable error of law: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456.
‘(1) The Tribunal affirms the decision under review in relation to documents 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 21, 23 and 24.
(2) The Tribunal sets aside the decision under review in relation to documents 1 and 2 and, in substitution, orders the Respondent to release those documents without exemptions to the Applicant, the Tribunal’s order for their release to take effect 28 clear days after the publication of this decision.
(3) The Tribunal sets aside the decision under review in respect of documents 3, 6, 13, 18, 19 and 22 and remits the exemptions claimed in respect of those documents to the Respondent for reconsideration in accordance with these reasons.’
9 The appeal alleges that the Tribunal erred in law in several respects; and applies for leave to extend the appeal to the merits.
10 The appeal relates to Orders (1) and (3). There is no cross-appeal by the agency. It has complied with Order (2).
11 As noted above, Order (3) involved a remittal to the agency for reconsideration. It is evident from the reasons of the Tribunal below that it agreed with the agency’s decision based on the material the agency had before it at the time of its decision. However, some new material came to light in the course of the hearing before the Tribunal, and it felt that it should give the agency an opportunity to reconsider its position in light of that material. The Tribunal explained at [59]-[60]:
12 The Tribunal has two statutory powers to remit for reconsideration. One involves the setting aside of the decision under review followed by remitter (ADT Act 1997, s 63(3)(d)), as occurred in this instance; while the other involves remittal for reconsideration ‘at any stage of the proceedings’ without setting aside (ADT Act, s 65).
‘59 In conclusion, documents 1 and 2 should be released in full. I note, however, that if the Committee is correct and Landcom lodged a Development Application for the site with Warringah Council in November 2004, several months before the Committee’s FOI application was lodged on 28 February 2005, and that Development Application contains information claimed to be exempt in the current proceedings, then the Department should have been aware of the release of any relevant information, which would thereby be in the public domain, and account should have been taken of that in claiming exemptions in the current proceedings. Ms Johnson, for the Department, undertook to seek further instructions from the Department on the release of the whole or part of the documents numbered 1, 3, 6, 13, 18, 19 and 22 on the basis that the Development Application may disclose further information contained in those documents in respect of which an exemption is claimed in these proceedings.
60 In my view, it is therefore appropriate to set aside the decision under review in respect of documents 3, 6, 13, 18, 19 and 22 and remit the exemptions claimed in respect of those documents to the Department for reconsideration (pursuant to s 63(3) of the Administrative Decisions Tribunal Act 1997) having taken into account the release of information by Landcom in its Development Application lodged with Warringah Council.’
13 At the hearing before the Appeal Panel, the agency advised that it had reconsidered its position and had affirmed its previous decision in relation to documents 3, 6, 13, 18 and 19. In the instance of document 22 it has revised its position. It no longer claims that the whole of the document is exempt, and has released two pages (pages 362 and 363) (Letter to the Registrar from Crown Solicitor’s Office dated 3 August 2006.)
14 The Appeal Panel at hearing accepted the submission of both parties that the practical course, therefore, was to treat the appeal as covering not only Order (1), but also the decision made by the agency on remitter in respect of documents 3, 6, 13, 18, 19 and 22. The agency submitted that the Tribunal had used its s 65 power.
15 On reflection, we are of the view that the Appeal Panel is without jurisdiction in respect of Order (3). In our view the Tribunal used the s 63(3)(d) power, and thereby exhausted its jurisdiction (there being no appeal by either party against the order to remit). Had the Tribunal used the s 65 power, it would have retained jurisdiction; and any ultimate decision of the kind now made by the agency would remain within the parameters of the application for review and the appeal rights. Section 65(3) provides:
16 Accordingly, the formal position is that this decision can only deal with Order (1).
‘(3) If the administrator varies the decision:
(a) the application is taken to be an application for review of the decision as varied, and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied, or
(ii) withdraw the application.’
17 The critical circumstance in this case is that the sale process has yet to complete. The agency, responding to concerns raised with it by DET, is concerned that release of documents which reveal instructions, methods of valuation and the outcomes of the valuations, would, if it became known, impair the ability of the Government to obtain the best price on any future sale. The agency in its submissions put the problems as it saw them with releasing the documents at this stage in these terms:
18 The agency acknowledged, in its submissions, that were the process complete, and a sale secured, then the strength of these objections would weaken, and it may be that no further barrier would remain to release of some or all of the disputed documents.
(a) the release of the information about the sale price, or information which would allow a skilled person to reasonably estimate the sale price would damage DET’s bargaining power with a potential purchaser if the contract fell through and DET were required to sell its site to a developer other than Landcom
(b) similarly, if Landcom purchased the land but decided to sell it to a private developer, release would distort the process of achieving the best sale price for Landcom
(c) the disclosure of information about Landcom’s estimated project costs and returns would significantly undermine the tendering process that Landcom uses to obtain the most competitive price for the completion of works
(d) the option fee paid by Landcom to DET to secure its option to purchase the land and documents setting out the proposed payment arrangements with DET would allow private competitors to estimate what Landcom might pay for an option or how it would structure its payment arrangements in future projects, thereby allowing private competitors to outbid Landcom; and
(e) disclosure of the kinds of sale options considered, or the planning and site constraints identified, would reduce DET’s bargaining power with a potential purchaser, if the sale to Landcom were to fall through.
19 Three exemptions have been relied upon:
20 The agency must put forward credible evidence of a specific kind in support of a claim for an exemption. The burden of establishing that its determination is justified lies on the agency: FOI Act, s 61. In this case, the agency produced evidence to the Tribunal going to the matters required to be addressed by these exemptions, some of which was heard in confidential session.
‘ Clause 7(1)(b) , which provides:
(1) A document is an exempt document: …
(b) if it contains matter the disclosure of which:
(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.
(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, …
Clause 7(1)(c), which provides:
(1) A document is an exempt document:
(c) if it contains matter the disclosure of which:
(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.
(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(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.
Clause 15, which provides:
A document is an exempt document if it contains matter the disclosure of which:
(a) could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency, and
(b) would, on balance, be contrary to the public interest.’
21 The item of information that the Committee is most keen to obtain is the sale price shown in the uncompleted contract. The appellant drew attention before the Tribunal and again before the Appeal Panel to the fact that a possible price for the sale is known. A price ($6.8m) appeared in a draft contract that was inadvertently disclosed in error in the course of processing the present request. This event is seen by the appellant as a factor bearing on the balance to be struck between access and non-disclosure in this case.
22 The agency noted that there had never been any concession on its part as to whether that price was the final sale price or as to the status of the draft contract in the dealings between the parties. The agency accepts that once the sale is completed and the transfer is registered, the consideration for the transfer will be publicly known. There may be an ongoing case for protection of the valuation reports but it accepts that the balance that might be struck as to what is ‘reasonable’ in these circumstances (see cl 7(1)(b)(ii) and cl 7(1)(c)(ii)) may change, as may be the calculus as to the ‘public interest’ (s 15).
23 We will not repeat at length the Tribunal’s reasons. The Tribunal, in our view, stated the law correctly as to the meaning to be given to each of the three exemptions, and the approach to their interpretation. It applied the law to each of the documents in dispute, and gave clear reasons as to why it concluded that the agency had justified its determination.
24 This is the principal objection to the Tribunal’s reasons.
Adequacy of Reasons for Decision
25 The Tribunal is required to give adequate reasons: ADT Act, s 89. There is abundant case-law on what is required by way of adequate reasons, the leading authority in New South Wales being Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70. The Appeal Panel has frequently referred to the relevant principles: see, for example, Woodside & anor v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8; Minister for Community Services v CE (No.1) (CSD) [2002] NSWADTAP 7; and, recently, Commissioner for Fair Trading, Office of Fair Trading v Cromwell’s Auctioneers & Appraisals Pty Limited (GD) [2005] NSWADTAP 25.
26 The observations of Mahony JA referred in an earlier case, Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386 have often been noted, where his Honour said:
27 As to cl 7(1)(b), the agency first (see (b)(i)) must show that the matter for which protection is sought has ‘commercial value’ to the agency. There can be no doubt, we consider, that confidential valuation methodologies, confidential valuations and confidential material relevant to formulation of a sale price is matter of ‘commercial value’ to an agency, just as it would be for a private sector business. There was ample evidence provided by the agency to enable the Tribunal to reach the conclusion that this requirement was satisfied. The agency must then demonstrate (see (b)(ii)) that the disclosure of the information ‘could reasonably be expected to destroy or diminish the commercial value of the information’.
‘[T]he decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.’
28 The Tribunal noted the need to take an essentially objective approach (see, for example Vincent Neary v State Rail Authority [1999] NSWADT 107 at [35]) when determining whether there is a reasonable expectation and whether the assertions made by the agency that disclosure might ‘destroy or diminish’ that commercial value were persuasive. This is an exercise essentially of a discretionary kind. There was ample material before the Tribunal to support the conclusion it reached. The Tribunal’s conclusions are in line with similar decisions on similar circumstances in the past: for example Freeland v General Manager, Liverpool City Council [1999] NSWADT 95; and Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37. The Tribunal has recognised that disclosure of confidential commercial documents at a point when the sale or tender process is not complete may have this effect.
29 As to cl 7(1)(c), the first element (see (c)(i)) is broader than the first element of cl 7(1)(b). It is enough to show that the matter for which protection is sought would if disclosed reveal ‘information concerning the business, professional, commercial or financial affairs’. This requirement was easily satisfied in this case, as the Tribunal’s reasons explain (for similar cases, see, for example Cianfrano v Director General, NSW Treasury [2005] NSWADT 7 at [63]; Raethel v Director General, Department of Education and Training [1999] NSWADT 108 at [46]-[47]; and CH Real Estate Pty Ltd (t/a Raine & Horne Commercial, Penrith) v Penrith City Council [2005] NSWADT 147 at [51] and [54]).
30 The more difficult task for the agency is to bring the case within the second requirement ((c)(ii)) – to show that disclosure can ‘reasonably be expected to have an unreasonable adverse effect on those affairs or … prejudice the future supply of such information to the Government or to an agency’. The judgement required of the decision-maker (initially, the agency, and, on review, the Tribunal) is one involving relatively factual matters (adverse effect) and matters more of an evaluative kind based on the evidence (‘unreasonable’ adverse effect, ‘prejudice … future supply’). The evidence of the agency officers went to these matters and was detailed. The Tribunal carefully considered it, took account of the competing views of the appellant as to where the balance should lie, and accepted that the second requirement had been established. We see no reason to disturb its conclusions. It is in line with conclusions reached in the cases mentioned in the last paragraph.
31 So far as cl 7(1)(b) and cl 7(1)(c) are concerned, we are satisfied that the reasons are adequate. The reasons clearly state the law to be applied. They refer to the evidence given by the agency, and the criticisms and submissions made in reply by the appellant. They apply the law to the evidence, and clearly explain their conclusions.
32 It is not necessary to refer to every item of evidence or every submission made by the parties. The Tribunal did not disregard the submissions of the appellant – they are referred to, for example, at paras [32]-[38], [61], [63] and [64].
33 As to cl 15, it will be seen that there are some similarities with the kind of considerations that are relevant to cl 7(1)(b) and cl 7(1)(c). The focus of cl 15 is the ‘financial and property interests of the State or an agency’. It is clear, we think, that the disputed documents bear on the financial and property interests of the State. Documents with this characteristic would probably always contain matter of a ‘business’, ‘commercial’ or ‘financial’ character, and therefore fall within the primary categories of cl 7(1)(b) and (c).
34 Clause 15 is, however, a more stringent exemption than cl 7 in two respects. First the degree of ‘adverse effect’ must be ‘substantial’, not just ‘unreasonable’ as in cl 7, and, unlike the position in respect of cl 7, it must be demonstrated that disclosure ‘would, on balance, be contrary to the public interest’. Clauses 7(1)(b) and (c) have single-factor discretionary tests, in comparison with cl 15’s two factor discretionary test, with a more stringent first element and a new second element. It can be seen that information which might, therefore, fall within the area of coverage of both cl 7(1)(b) and cl 15 might, ultimately, only win protection under cl 7(1)(c) and not under cl 15.
35 The following passages of the Tribunal’s reasons refer to the evidence, submissions and the Tribunal’s approach to the application of cl 15:
36 In dealing with the individual documents, a typical analysis is that made in connection with document 7:
‘6 With regard to cl 15, the Department submits that the release of specified documents would jeopardise the chances of the DET achieving a comparable sale price if current arrangements with Landcom fall through. This could reasonably be expected to have a substantial adverse effect on the financial or property interests of the DET. The Department submits that other specified documents concern the preservation of the integrity of the tendering process which Landcom will undertake if it develops the site; documents of this kind were found to be exempt in the Leichhardt Municipal Council case [ Leichhardt Municipal Council v Roads and Traffic Authority [2005] NSWADT 37]. …
38 With regard to the claimed cl 15 “documents affecting financial or property interests” exemption, the Committee submits the sale price of the land is already public knowledge and since the sale is by one government agency to another, disclosure of this information would not, in any event, jeopardise the chances of DET achieving a comparable sale price. The sale to Landcom is essentially the internal transfer of an asset and there is no evidence that it is being done in a way that optimises the return to the DET. The effect of such a transfer for less than market value will be a financial benefit to Landcom that will ultimately be paid into government consolidated revenue. …
40 With regard to cl 15, I have taken the view that where there is evidence that a substantial adverse effect on the DET’s financial interests could reasonably be expected by the disclosure of information jeopardising the DET’s ability to achieve a comparable sale price should the sale to Landcom not proceed, or undermining the integrity of the tendering process, and that disclosure would, on balance, be contrary to the public interest, then that material is exempt.’
37 It will be seen that at this point the Tribunal does not distinguish between cl 7 and cl 15. This approach gives rise to the danger that there may be a lack of differentiation between what is required to satisfy cl 7 as compared to cl 15. As we have explained, cl 15 imposes a tougher test than cl 7. It is possible that an agency’s case might be sufficient to meet the standard set by cl 7 but not by cl 15. Equally the agency’s evidence and submissions might be sufficient to meet both standards.
‘An exemption is claimed under cl 7 and cl 15 in respect of part of the document in which reference is made to a specific offer made by Landcom for the site including the amount of the offer and the author of the document’s comment on that amount. In my view, the relevant part of the document is exempt under both cl 7 and 15.’
38 There does not need to be a new and separate body of material going to the public interest. But it is desirable that there be separate treatment of this consideration; otherwise there is a danger that the consideration of the first factor and the second factor will be elided.
39 The appellant disputed the Tribunal’s giving of weight to the Commonwealth Administrative Appeals Tribunal decision in David Miles Connolly v Department of Finance No 94/50 AAT no 9571. In that case the Tribunal recognised the strong public interest in the community being informed of a government’s plans ‘to realise assets that belong to the public’ (at [26]), but set that off against the adverse price effect that disclosure of spot prices for sale of the country’s uranium stockpile would have on future negotiations. The Tribunal concluded that the documents containing this information should not be released. In our view, the case was a relevant one to consider.
40 We note that the appellant’s contention, relevant to the public interest calculus – that the sale process was not at arms length and was an ‘in house deal’ – was the subject of detailed evidence and submissions before the Tribunal. The agency’s witnesses were cross-examined on this matter.
41 We have considered whether the approach taken at the point the Tribunal undertook a document by document analysis reveals a serious degree of inadequacy, especially in the case of cl 15.
42 In our view, reading the reasons as a whole, they are adequate. It is clear from paras [26], [38] and [40] that the Tribunal was cognisant of the distinction between the requirements of cl 7 and of cl 15. The agency also in its submissions clearly turned its mind to the differences between cl 7 and cl 15. It is clear, reading the reasons as a whole, that the Tribunal regarded the agency evidence (summarised at [10]-[19]) as cogent and meeting the standards required by both cl 7 and cl 15.
43 We are satisfied that there was no error of law in the Tribunal’s consideration of the Committee’s case. We note that the Tribunal’s conclusion is in line with a similar previous case involving an application for documents in connection with a school closure – Wilson v Department of Education (District Court (Smyth J), unreported, 21 December 1989). We should add that if we had found error in the treatment of cl 15 (lack of adequate separate consideration, especially in connection with the public interest test), we would have remained satisfied that the reasons are sufficiently explained in respect of the application of the cl 7 exemptions.
44 Accordingly, we are satisfied for the reasons given that the Tribunal correctly applied the law and provided adequate reasons (the issues raised by Grounds 1, 5 and 6).
45 Grounds 2, 3, 4 assert that the Tribunal failed to accord the appellant procedural fairness. The complaint would seem to be that it was close-minded towards the appellant’s case in relation to the public interest favouring release. The Tribunal held a hearing of a usual kind with parties being given the opportunity to file evidence and submissions in advance. It canvassed the cases of the parties. It dealt with the parties fairly.
Other Matters
46 There is reference in the grounds of appeal (Ground 3) to an alleged error on the part of the Tribunal by disobeying s 59A of the FOI Act, which provides:
47 This point is developed at some length in the appellant’s submissions.
‘ 59A Public interest
For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:
(a) cause embarrassment to the Government or a loss of confidence in the Government, or
(b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.’
48 In our view the Tribunal did not transgress s 59A. It did not have regard in its decision to either of these factors or attached any weight to them. It is plain that the agency’s arguments had to do with the need to protect the integrity of any future sale process if the present one falls over.
49 Another ground of appeal (Ground 7) relates to the requirement that the Tribunal give effect to Government policy. Section 64 of the ADT Act provides:
50 The appellant refers to three Premier’s Memorandums – No 2000-11 Disclosure of information on Government contracts with the private sector dated 27 April 2000; No 2002-47 Disclosure of information on Government contracts with the private sector dated 25 September 2002; and 2002-07 Engagement and Use of Consultants dated 7 June 2002. These memorandums may be retrieved via the NSW Government web-site, by searching on Premier’s Department Circulars.
‘ 64 Application of Government policy
(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.
(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.
(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.
(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.
(5) In this section:
Government policy means a policy adopted by:
(a) the Cabinet, or
(b) the Premier or any other Minister,
that is to be applied in the exercise of discretionary powers by administrators.’
51 We have perused Memorandums No 2000-11 and 2002-47. They are related. Memorandum 2002-47 essentially clarified that the principles set out in No 2000-11 were applicable to all types of government contracts. In our view these Memorandums clearly pertain to completed contracts (as for example where a tender process has been completed and the tender let); and there is also a second point of difference – they apply to government contracts with the private sector, not another public sector body, as here.
52 Memorandum 2002-07 is related to Memorandum 2000-47, the latter being entitled Engagement and Use of Consultants. There is nothing in our view in 2002-07 which bears on the present case. The principal Memorandum 2000-47 contains detailed guidelines relating to how agencies are to deal with external consultants. We will not set these guidelines out at length. There is nothing in them to suggest that the documents in dispute in these proceedings should have been dealt with differently, or a different view be taken on such matters as ‘substantial adverse effect’ or the ‘public interest’.
53 The appellant also raises (Ground 5) the issue of the nature, if any, of the Tribunal’s jurisdiction to consider by way of review statements made in agency notices that a document does not exist. The Tribunal has addressed this issue recently in Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195 (agency appeal pending, with a question of law having been referred to the Supreme Court). We can detect no deficiency in the Tribunal’s decision in the present case to decline to entertain allegations, without any credible material from the appellant, that all relevant documents held by the agency were not identified (see further Cianfrano at [69]).
54 The appellant makes a case in favour of the ‘leaning approach’ (as it is called in the FOI literature – see for example the Full Federal Court in TheNews Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 at 66 per Bowen CJ and Fisher J where this approach is rejected; followed, Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor (1992) 36 FCR 111 at 115).
55 It is not appropriate, in our view, to adopt a ‘leaning approach’ in favour of disclosure going beyond any balance indicated by the terms of the FOI Act. In the case of cl 15 a balance is set, as it happens one which seeks still to encourage disclosure. The onus lies on the agency to show that it would be ‘contrary to the public interest’ to disclose the documents. In any case we are bound to adhere to the approach taken by McColl JA in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [150]-[151]:
56 The appellant has not demonstrated any persuasive basis for revisiting the final Order (Order (1)) of the Tribunal. In our view, it was reasonably open to the Tribunal on the evidence and submissions that it received from both parties to reach the conclusion that it did. There is nothing, in our view, to suggest any significant error as to law, in its understanding of the facts or circumstances or in the exercise of its discretion to justify revisiting the merits of the decision. It would not be in the interests of justice for the agency determination to be reopened once again.
‘150 This Court should follow, as a matter of judicial comity, the approach taken by the Full Federal Court; Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 480 at 482 . It accords with Mahoney JA’s observation in Commissioner of Police v District Court of New South Wales & Anor [(1993) 31 NSWLR 606] (at 639–640) that in s 16 (which provides that a person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act ) the legislature had “adopted the principle that a citizen should have access to documents held by Government agencies”, but added that “that principle must be subject to exceptions and qualifications” and that “[t]he precise terms of the [exception] clause should govern the extent of the remedy available.”
151 The Full Federal Court’s approach, in my view, accords with the s 5(3) obligation to interpret and apply the FOI Act so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters. Thus, as Beaumont J said, testing whether disclosure of documents would be contrary to the public interest requires the decision-maker “to weigh the public interest in citizens being informed of the processes of their Government and its agencies on the one hand against the public interest in the proper working of Government and its agencies on the other: Harris v Australian Broadcasting Corporation [(1983) 78 FLR 236] (at 246).’
Application for Extension to the Merits
Order
Appeal dismissed.
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