Shoebridge v Commissioner of Police, NSW Police Force (No. 3)

[2018] NSWCATAD 110

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Shoebridge v Commissioner of Police, NSW Police Force (No. 3) [2018] NSWCATAD 110

Hearing dates:

19 December 2017, 8 February 2018 and 2 March 2018

Date of orders:

28 May 2018

Decision date:

28 May 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1) The decision of the respondent is set aside in respect of documents 1, 16, 34, 36 and 40.

 

(2) In substitution for that decision the respondent is to release the material in those documents identified in order (1) within 28 days of the publication of these reasons.

 

(3) The decision of the respondent is varied in respect of documents 23 and 39, and those documents are to be released after 28 days of the publication of these reasons in the form of the confidential annexures to the confidential reasons for decision.

 (4) The decision of the respondent is affirmed in respect of documents 4, 5, 6, 7, 8, 9, 10, 33 and 35.

Catchwords:

ADMINISTRATIVE LAW - Government Information (Public Access) Act 2009
– Government Information – Access – Confidential information –Cabinet material – Position Minister has taken is taking will take is considering taking to Cabinet – Deliberative process – Process concluded – Weight of evidence when process concluded.

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Freedom of Information Act 1989
Government Information (Public Access) Act 2009
Government Sector Employment Act 2013

Cases Cited:

Cianfranco v Department of Commerce [2005] NSWADT 282
Commissioner of Police, NSW Police Force v Camilleri [2012] ADTAP 19
Commonwealth v Northern Land Council [1993] HCA 24
D’Adam v New South Wales Treasury [2015] NSWCATAP 61
Director General, Department of Education & Training v Mullett (GD) [2002] NSWADTAP 13
Fire Brigade Employees Union v Fire and Rescue NSW [2014] NSWCATAD 113
Flack v Commissioner of Police (NSW) [2011] NSWADT 286
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Luxford v Department of Education and Communities [2016] NSWCATAD 118
Mannix v Department of Education and Communities [2014] NSWCATAD 35
McKay v Transport for NSW [2017] NSWCATAD 212
Murphy v Broken Hill City Council [2015] NSWCATAD 135
Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353
Smith v Pittwater Council [2016] NSWCATAD 67
Smolenski v Commissioner of Police [2015] NSWCATAP 235
Viva Energy Australia Ltd v Northern Sydney Local Health District [2016] NSWCATAD 75
Watts v Department of Planning and Environment [2016] NSWCATAD 42

Category:

Principal judgment

Parties:

David Shoebridge (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Self-represented (Applicant)

  Solicitors:
NSW Crown Solicitor’s Office (Respondent)

File Number(s):

2017/00045369

Publication restriction:

Pursuant to ss 64 of the Civil and Administrative Tribunal Act 2013 and s 107 of the Government Information (Public Access) Act 2009, publication and disclosure of paragraphs 61 – 72 to any person other than the respondent is prohibited.

Reasons for decision

What these proceedings are about

1. The applicant is seeking government information from the Commissioner of Police concerning the development of the New South Wales position on the national reclassification of a lever action firearm (Adler rifle). The particular rifle was a new type of firearm with a higher shot rate than other non semi automatic or automatic firearms.

2. The concern was that as the rifles were initially unclassified, they were by default placed in the lowest restriction category. As a result of widespread community concerns the Commonwealth Government suspended imports of the rifle in mid 2015 and the future classification was considered as part of a review of the National Firearms Agreement (NFA). The rifles, which could discharge up to five rounds, were reclassified as Category B which is less restrictive than Category C. Category C is limited to occupational users.

3. The applicant believes that there has never been an adequate explanation as to why Category B was in effect widened to accommodate these rifles, and argues that there is strong public interest to see if ‘political expediency has defeated public safety in the classification of lever action shotguns.’

4. The Tribunal has decided to affirm the decision to withhold the material for which a conclusive presumption against disclosure (Cabinet material) is made, but to set aside the decision in respect of some aspects of the material for which it was claimed that there was an overriding public interest against disclosure. That material will be released in accordance with the orders above.

Background

5. On 13 February 2017 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents, which were of interest to the applicant. These documents were held by the respondent agency.

6. The applicant sought to comprehend the background basis for the proposal to reclassify the Adler A110 shotgun. In making this application the applicant was aware of the reclassification of the 7 shot Adler A110 shotgun as a category D weapon and the 5 shot as a Category B weapon by the passage of NSW legislation and Council of Australian Governments (COAG) agreements at the National level.

7. As a result of the legislative reforms, in summary the four Categories of firearms which concern the information in these proceedings is as follows:

Firearms are applicable to a Category A firearms licence:

* Air rifles.

* Rimfire rifles (other than self-loading).

* Shotguns (other than pump action, lever action or self-loading).

* Shotgun/rimfire combinations.

All prohibited firearms are excluded from this licence category. Prohibited firearms are listed in Schedule 1 of the Firearms Act 1996.

Firearms are applicable to a Category B firearms licence:

* Muzzle-loading firearms (other than pistols).

* Centre-fire rifles (other than self-loading).

* Shotgun/centre-fire rifle combinations.

* Lever action shotguns with a magazine capacity of no more than 5 rounds.

All prohibited firearms are excluded from this licence category. Prohibited firearms are listed in Schedule 1 of the Firearms Act 1996.

Firearms are applicable to a Category C firearms licence:

* Self-loading rimfire rifles with a magazine capacity of no more than 10 rounds.

* Self-loading shotguns with a magazine capacity of no more than 5 rounds.

* Pump action shotguns with a magazine capacity of no more than 5 rounds.

These firearms are prohibited except for limited purposes.

Some firearms, specifically those adapted for military purposes, are excluded under all circumstances from this licence category.

Firearms are applicable to a Category D firearms licence:

* Self-loading centre-fire rifles.

* Self-loading rimfire rifles with a magazine capacity of more than 10 rounds.

* Self-loading shotguns with a magazine capacity of more than 5 rounds.

* Pump action shotguns with a magazine capacity of more than 5 rounds.

* Lever action shotguns with a magazine capacity of more than 5 rounds.

* Any firearms to which a Category C licence applies.

These firearms are prohibited except for official purposes.

Some firearms, specifically those adapted for military purposes, are excluded under all circumstances from this licence category.

(emphasis added)

8. This information is publically available on the NSW Firearms Registry website. It is provided to illustrate that all Lever Action shotguns are not classified as Category B and D whereas prior to the amendments some of these firearms were classified in the least restrictive Category A.

9. That initial application was made to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) on or about 27 October 2017. The applicant was seeking copies of material relating to the matters referred to in paragraph 2 (above). Whilst the respondent provided some of the information in response to the application, the respondent withheld the majority of the items identified in the application for information, because in their view there was an overriding public interest against disclosure of the information. This decision was made on 10 January 2017.

10. The applicant requested the following information:

1.   Any or all advice and or memorandums prepared by or from the NSW Police Force regarding the ADLER A110 shotgun (either or both of the 5 shot magazine and 7 shot magazine versions and any variations thereof)

2.   Any or all advice and or memorandums prepared by or from the NSW Police Force regarding magazine extensions or other alterations of the ADLER A110 shotgun (either or both of the 5 shot magazine and 7 shot magazine versions and any variation thereof).

3.   This includes advice or memorandums to any other state or federal agency, body including Ministerial offices.

4.   Documents from 1 January 2015 to date.

11. In the initial decision the respondent identified 41 separate documents that fell within the scope of the application. The respondent identified eight documents for which it provided complete access. A further three documents were released to the applicant with some redactions or parts of the material withheld. The remaining 30 documents were entirely withheld.

12. In refusing access to most of the information, the respondent relied on two separate provisions of the GIPA Act. The major suite of information was withheld on the basis that in the respondent’s view there was an overriding public interest consideration against disclosure, sufficient to override the general public interest consideration in favour of disclosure of information. In respect of the other, smaller, suite of information, the respondent identified it (from its content and context) as information for which there is a conclusive presumption against disclosure. Specifically this information was identified as being ‘Cabinet information’ as defined in Sch 1 Cl 2 of the GIPA Act.

13. The applicant did not seek an internal review or an external review from the Information Commissioner under Part 5 Division 3 of the GIPA Act. Instead the applicant exercised his right to administrative review by the Tribunal within the 40 working day period provided for under s 101 of the GIPA Act. The application was filed on 13 February 2017 and set out a number of grounds as to why the withheld documents should be released.

14. In summary those grounds asserted that the claimed ‘deliberative process’ that would be potentially prejudiced had been concluded and therefore could not be ‘retrospectively prejudiced.’

15. Initially the parties were genuinely attempting to resolve the matter (by attempting mediation) and then by narrowing the issues in dispute. However a dispute arose in September 2017 in respect of the scope of the application. The respondent determined that material which they had previously considered to be within the scope of the application was, on reassessment, now considered to be out of scope.

16. The scope issue related to the assessment of the meaning of the words Adler A110 which the respondent now sought to apply narrowly. In order to resolve this issue the parties agreed that a second application for information would be lodged by the applicant and the respondent would respond to the matter before the Tribunal.

17. On 22 September 2017 the applicant lodged his ‘further’ matter which stated:

“*Please note the reference to the ADLER A110 includes reference to any other lever-action shotgun.”

By consent the Tribunal considered the application as clarified by the applicant.

Jurisdiction

18. There is no dispute that the application for administrative review has been lodged within time, nor is there any dispute that the Tribunal has jurisdiction to review the decisions. The decision under review is a reviewable decision in accordance with s 80 of the GIPA Act. The Tribunal’s jurisdiction is enlivened by s 100 of the GIPA Act.

The Legislative Provisions

19. The objects of the GIPA Act are as follows:

3 Object of Act

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

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

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

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

(2) It is the intention of Parliament:

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

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

20. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 the following outline of the provisions is provided:

5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

21. There are two provisions of the GIPA Act which the respondent relied upon in withholding information from the applicant. The major provision applies where public interest considerations against disclosure of government information override the general public interest in favour of disclosure. These provisions are set out in the Table to s 14 of the GIPA Act, and the relevant matters relied upon at the commencement of the proceedings were:

Table

1 Responsible and effective government

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

(a) …

(b) …

(c) …

(d) …

(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f) …

(g) ...

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

22. Some minor reliance was initially placed on the provisions of cl 3 (a) from the Table concerning ‘personal information’.

3 Individual rights, judicial processes and natural justice

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

(a) reveal an individual’s personal information,

23. The applicant in effect withdrew his objection to the privacy grounds (cl 3(a)) in that he was content for personal information to be redacted from any documents provided, or otherwise sought to be withheld (under the more substantive grounds).

24. By the time of the hearing the respondent’s position had evolved somewhat with further grounds under the Table to s 14 being relied upon. The additional grounds are as follows:

Table

1 Responsible and effective government

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

(a) prejudice collective Ministerial responsibility,

(b) prejudice Ministerial responsibility to Parliament,

(c) prejudice relations with, or the obtaining of confidential information from, another government,

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

(e) ..

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

7 Exempt documents under interstate Freedom of Information legislation

(1) There is a public interest consideration against disclosure of information communicated to the Government of New South Wales by the Government of the Commonwealth or of another State if notice has been received from that Government that the information is exempt matter within the meaning of a corresponding law of the Commonwealth or that other State.

25. The matters set out in the Table are factors which can be taken into account when deciding whether to refuse access to government information. The presence of those factors enlivens consideration of the provisions. That consideration must take account of evidence which establishes whether the factors against disclosure effectively outweigh the factors in favour of disclosure. Relevantly section 14 provides:

14 Public interest considerations against disclosure

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

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

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

26. As indicated above the respondent relied on a second ground to withhold some of the information. Schedule 1 of the GIPA Act sets out the material or grounds for which there is a conclusive presumption against disclosure. The respondent relied upon the provisions relating to Cabinet Information (Clause 2). The provision provides:

Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

2 Cabinet information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents:

(a) a document that contains an official record of Cabinet,

(b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet’s consideration (whether or not the document is actually submitted to Cabinet),

(c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet’s approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given),

(d) a document prepared after Cabinet’s deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions,

(e) a document prepared before or after Cabinet’s deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,

(f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)–(e).

(2) Information contained in a document is not Cabinet information if:

(a) public disclosure of the document has been approved by the Premier or Cabinet, or

(b) 10 years have passed since the end of the calendar year in which the document came into existence.

(3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1).

(4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would:

(a) reveal or tend to reveal information concerning any Cabinet decision or determination, or

(b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet.

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

Scope of release in respect of documents

27. By the time of the hearing the scope of the documents in dispute had altered somewhat from the initial decision. Now only 16 documents were refused in full. A further four were refused as they were out of scope and two further documents were duplicates (Tab 34 - duplicate of Tab 7 and Tab 42 a duplicate of Tab 16). In addition the applicant no longer pressed the release of one document (Tab 41).

28. The documents which are the subject of these reasons therefore are the following documents identified from the Respondent’s schedule of documents and basis for withholding:

• Tab 1 State Crime Command brief to Commissioner T14 cl. 1 (e), 1 (f) and Sch. 1, cl 2.

• Tab 4 Draft briefing note for Oct 2016 LCCSC meeting T 14, cl. 1 (a), (c), (d), (e), and (f) and Sch. 1 cl 2.

• Tab 5 Draft briefing note for Oct 2016 LCCSC meeting T 14, cl. 1 (a), (c), (d), (e), and (f) and Sch. 1 cl 2.

• Tab 6 Draft briefing paper for March 2016 NJPSOG meeting T 14, cl. 1 (a), (c), (d), (e), and (f).

• Tab 7 Draft briefing paper for March 2016 NJPSOG meeting T 14, cl. 1 (c), (d), (e), and (f).

• Tab 8 Draft briefing paper for March 2016 NJPSOG meeting T 14, cl. 1 (c), (d), (e), and (f).

• Tab 9 Draft briefing paper for March 2016 NJPSOG meeting T 14, cl, 1 (c), (d), (e), and (f).

• Tab 10 Draft briefing paper for March 2016 NJPSOG meeting T 14, cl. 1 (c), (d), (e), and (f).

• Tab 16 Brief to Commissioner from Firearms Registry re: July meeting FWPWG T 14 cl. 1(c), (d), (e), (f).

• Tab 23 LCCSC Paper supplied by Cth AG Dept T 14, cl.1 (c), (d), (e), (f) cl. 7 (1).

• Tab 33 Briefing prepared for the 5 November 2015 meeting of the LCCSC T 14 cl. 1 (a), (c), (d), (e), (f) and Sch. 1 cl 2.

• Tab 34 Commonwealth paper: LCCSC paper on FWPWG recommendations, supplied by Cth AG Dept T 14, cl.1 (c), (d), (e), (f) cl. 7 (1).

• Tab 35 Draft briefing paper for March 2016 NJPSOG meeting T 14, cl.1 (c), (d), (e), (f).

• Tab 36 Commonwealth paper NJPSOG Agenda Paper T 14, cl.1 (c), (d), (e), (f) cl. 7 (1).

• Tab 39 Firearms Registry regulatory and cost analysis on proposed amendments to NFA cl. 1 (f) cl. (2) (b).

• Tab 40 Attachments to Firearms Registry advice Ballistics Unit response T 14, cl.1 (e), (f).

29. I note that the position has changed significantly with approximately a 50% reduction in the amount of material in dispute between the parties. Instead of 30 documents withheld in their entirety, there are now 16 documents withheld from release.

Hearing of matter before the Tribunal

30. Material was withheld because its release would impact on the manner in which the executive arm of the Government carried out its functions. Firearms working groups, COAG structures and the processes in which those groups prepare and perform would in some way be compromised by release of agendas, draft agendas, briefing documents, papers prepared to address issues relating to the work of the groups and consultation with other relevant players / Departments such as Justice, Police and other jurisdictions. The respondent submitted that these functions would be prejudiced or compromised by the release of the material.

31. The secondary claim advanced in the hearing was that much of this material in its various iterations was prepared for or in the context of work ultimately done by Cabinet. I note that during the hearing these arguments were said to apply only to four of the documents in dispute. But, by the final sitting date they had increased to 10 documents. The applicant understandably raised concerns about how he could properly address the changes to the respondent’s position. Further hearing time was allowed after an appropriate time to prepare.

32. The respondent provided affidavit evidence and witnesses who gave evidence at both open and confidential parts of the hearing. In the open hearing the respondent’s witnesses were subject to cross examination by the applicant. In respect of evidence adduced at the confidential session of the hearing, those matters to the extent that they need to be incorporated into these written reasons, will be dealt with in confidential reasons. Section 107 provides the following in respect of how the Tribunal should address confidential evidence and submissions. The section provides:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

Applicant’s evidence and submissions

33. The applicant filed:

• The application for administrative review which included submissions. (Exhibit ‘A-1’)

• Written submissions filed 7 December 2017 annexing 104 pages of material in two annexures (comprising public record material on firearms categorisation and related matters). (Exhibit ‘A-2’)

34. The applicant relied on various cases of the Tribunal and the Administrative Decisions Tribunal (ADT) in support of his arguments as to why the s 14 arguments of the respondent should be rejected. In respect of the cl. 1 (e) grounds -revealing a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency. The applicant relied upon the cases of Smith v Pittwater Council [2016] NSWCATAD 67 (Smith) and Viva Energy Australia Ltd v Northern Sydney Local Health District [2016] NSWCATAD 75 (Viva). Essentially the submission being that those cases support the principle that the process must still be active or in train so as to enliven and meaningful consideration of the provision.

35. The applicant submitted that the relevant provisions for the Table to s 14 are directed at preventing the disclosure of information detailing or revealing how tests, audits inspections and other assessments are conducted.

36. Reference was made to the case of Hurst v Wagga Wagga City Council [2011] NSWADT 307 to illustrate that like the other provisions of the GIPA Act, the agency bears the onus of establishing that the prejudicial effect. At 72 in Hurst the ADT observed:

To prejudice the effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results

72. In order to rely on the public interests considerations against disclosure in 1(h) of the Table to s 14 the agency bears the burden of establishing that it could be reasonably expected that revealing the purpose, conduct or results of the internal audit will prejudice the conduct, effectiveness or integrity of that audit.

73. In this case the audit is completed. Details of its geneses and outcome, albeit without all the details to be found in documents 4 and 5, are in the public domain: some released by council. Insofar as the documents contain information that is already in the public domain, release under the GIPA Act would not reveal that information for the purposes of 1(h). This is so because the definition of reveal in Schedule 4 of the GIPA Act provides that -

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

37. The applicant set out the history of the assessment of Adler rifles in some detail in written submissions. The basic summary is set out at paragraphs 1-3 above and also appears elsewhere in these reasons.

38. The applicant submitted that there was widespread public debate about how lever action shotguns should be categorised. The crux of the issue being that at the time of the National Firearms Agreement (following the firearms reforms in the wake of the Port Arthur shootings in 1996) these types of shotguns could not engage in a ‘rapid fire’ process. Technical advances and enhancements meant that these firearms were now similar to ‘pump action’ shotguns in their ability to discharge rapid rounds of ammunition. Much of this debate occurred during the 2015 / 2016 period when the substance of the information sought was created.

39. Reference was also made to McKay v Transport for NSW [2017] NSWCATAD 212 (McKay) in respect of the cl. 1(a) grounds that release would prejudice collective Ministerial responsibility. The applicant submitted that this case was also distinguishable on the facts. In McKay the issue under consideration was release of a proposed light rail route (2nd stage). The project (including the 2nd stage) had not been finalised and as the matter remained under active consideration, it was possible that the provision had been enlivened to consider withholding the information.

40. At paragraphs 82 – 83 of McKay the Tribunal observed:

82. On balance, I agree with the First Respondent’s submissions. In circumstances where the Second Stage of the route and stops has not yet been announced, I place more weight on:

(1)   the fact that these documents contain information regarding matters currently being determined by Cabinet, and that premature disclosure could prejudice such deliberations;

(2)   that there is evidence of the potential damage to the Government’s commercial interests occasioned by the premature release of confidential information within these documents; and

(3)   that there is evidence of the potential for persons to enjoy an unfair advantage relative to others in their property dealings, should this information be released at this time.

83. I therefore find that, at this time, the public interest in favour of disclosure is outweighed by the public interest considerations against disclosure, and that the correct and preferable decision is to refuse access to Documents 24, 30 and 35.

41. The applicant also addressed in written submissions the fact that the documents sought (where applicable) only relate to one Command of the NSW Police, not the entire Force. As I understand this aspect of the case, the argument of the respondent was that because of the nature of the business of the NSW Police, specific advice might have some strategic value based on which Command it was sourced from, or that it would provide an incomplete picture of that agency’s position.

42. The applicant referred to s 15 (d) of the GIPA Act in respect of such an argument. The section provides:

15 Principles that apply to public interest determination

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

(a) …

(b) …

(c) …

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

43. The applicant made a number of other submissions concerning the completion of the deliberative process. In response to the submission on the case of Fire Brigade Employees Union v Fire and Rescue NSW [2014] NSWCATAD 113 the applicant submitted that the case concerned the release of information concerning current budgetary options. At paragraph 62 the Tribunal found the process was ongoing.

62. The redacted information in the schedule that is document 84 is perhaps a good example of this. As identified in the email to which the schedule was attached, the schedule is a 'decision assessment tool' for identifying which fire stations within the Metropolitan Commands might be ToL stations. The nature of the 'tool' has been disclosed as are the each of fire stations (i.e. the appliance) within the Metropolitan Commands together with the relevant the zone, response planning times, 1st Pump Coverage, ToL Conditions and Appliance Category of each fire station. What has been deleted are the comments made by the relevant officers about matters that may need to be considered in any assessment that is made. These comments are clearly part of the respondent's 'internal thinking' and a disclosure of this information, in my view could reasonably be expected to reveal the deliberations of the respondent in such a way as to prejudice its ongoing deliberative process about deciding which fire stations should be temporarily taken off line. The ToL arrangements being a budget savings strategy.

44. The applicant submitted that the respondent’s arguments in the cases of : Luxford v Department of Education and Communities [2016] NSWCATAD 118, Murphy v Broken Hill City Council [2015] NSWCATAD 135 and Smolenski v Commissioner of Police [2015] NSWCATAP 235 are not on point with the arguments advanced in the current matter.

45. Reference was also made to the obiter and findings of the Tribunal in the case of Watts v Department of Planning and Environment [2016] NSWCATAD 42 concerning how information not covered by a conclusive presumption of overriding public interest against disclosure (Sch 1) should be considered having regard to the objects of the GIPA Act.

46. Other submissions focused on the respondent’s apparent basis for withholding certain information, including that the release would inhibit frank advice being given at some later point. The applicant went to some lengths in his submissions (as in his cross examination) to explore this point, and relied on the ‘ethical framework for public servants’ as set out in the Government Sector Employment Act 2013. Reference was made to s 6 which provides:

Part 2 Ethical framework for the government sector

6 Objective of Part

This Part:

(a) recognises the role of the government sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day, and

(b) establishes an ethical framework for a merit-based, apolitical and professional government sector that implements the decisions of the Government of the day.

47. Arising from those submissions the applicant took the Tribunal to the Public Service Commission’s information on behaving ethically as annexed at ‘F’ to Exhibit ‘A-2’. Those guidelines and the applicant’s submissions concentrated on a duty to be ‘frank and fearless’ in giving advice.

48. In addition the applicant addressed the cl 7 (1) ground to the Table to s14 which deals with a conflict with another domestic FOI regime. The applicant submitted that only the Commonwealth agency at COAG had objected, and that there was no evidence of any other objections. Again the applicant’s submissions were directed at contrasting the factual difference between the current matter and the cases relied upon by the respondent.

49. The applicant made the following submission on the impact on the government of the release of the relevant material central to these proceedings:

64. It will not bring down and government or tear apart COAG if, as a result of this application, it becomes apparent that other jurisdictions have differing views over time about the classification of lever action shotguns. Each government in the country is more than capable of dealing with the fact that different elements of its bureaucracy over time has had different views about the classification of a highly dangerous class of firearms.

65. Even assuming that there is some potential embarrassment to any one or more governments, then the interests of the public in having access to expert public advice on the appropriate classification of a highly dangerous weapon outweighs any political embarrassment. No government should be free from scrutiny if it has adopted a position on the classification of a highly dangerous weapon that is contrary to the advice they have received from the public service.

66. Embarrassment can be avoided in these cases by following expert advice. If any government chooses to reject its own expert advice then that government must be prepared to defend its actions. In any event the potential for embarrassment is precluded from being considered as a reason to prevent disclosure by ss15(c) of the GIPA Act. …

50. In response to the respondent’s claim that information was provided on either an express or implied confidential basis, the applicant referred to COAG’s own documents outlining that information provided at COAG can be released under FOI laws.

51. On the issue of the Cabinet grounds (Sch 1 cl 2) the applicant submitted that Cabinet was not informed by the actual documents in dispute, but was informed by separate briefing documents concerning the legislative changes arising from the COAG agreement.

52. The applicant submitted that there was some evidence that the relevant issues concerning gun control were being discussed by Cabinet around the time these documents were created, however such an assessment or concession does not therefore apply to all relevant holdings of the government sector concerning those topics. The applicant submitted that NSW law as it currently stands does not create a blanket prohibition on informing the public about policy views held by the public service, even where a matter has been considered by Cabinet.

50. The applicant submitted that the respondent’s reliance on the case of Commonwealth v Northern Land Council [1993] HCA 24 is clearly distinguishable from the current matter. In that case it was submitted that the documents being sought were actual records of the deliberations of Cabinet, a very different matter to the concept of communications that have been prepared to assist Cabinet.

51. During the stages of the hearing the applicant made submissions concerning the changing nature of the respondent’s case as well as the arguments in respect of withholding the information. At an early stage of the second tranche of the hearing the applicant submitted that the applicant was trying to prove a link between the documents (for which Cabinet grounds were claimed) and what the Cabinet position was. Because of the subsequent passage of the amending legislation the applicant submitted that the Cabinet position is now quite clear.

52. The Tribunal put a proposition to the applicant during oral submissions concerning different Police commands adopting a particular position or view on the policy proposal (re: lever action shotguns), and whether weight should attach to the argument that there was a need to keep these ‘views’ under wraps. The applicant submitted that in circumstances where the initial policy position is adopted, then release of the earlier document does not reveal (or tend to reveal) the position, adopting the statutory language of the GIPA Act.

Respondent’s evidence and submissions

56. The respondent filed the following material in response to the application:

• Open affidavit of G Gold affirmed 14 September 2017 (Exhibit ‘R-1’)

• Open affidavit of E Grimstad affirmed 15 September 2017 (Exhibit ‘R-2’).

• Supplementary open Affidavit of G Gold affirmed 18 December 2017 (Exhibit ‘R-3’)

• Supplementary open Affidavit of E Grimstad affirmed 19 December 2017 (Exhibit 'R-4')

• Copy of documents released in full or part by respondent (Exhibit ‘R-5’).

• Open affidavit of C Mackson sworn 26 February 2018 (Exhibit ‘R-6’).

In addition two confidential affidavits (‘RC-2’ and ‘RC-3’) were received during confidential session a confidential tender of all the remaining withheld documents (‘RC-1’).

57. The respondent also provided detailed written submissions and submissions in reply.

Closed Hearing.

58. The respondent sought a confidential hearing in accordance with s 107 of the GIPA Act. That hearing occurred at the conclusion of the open evidence and submissions.

59. The Tribunal dealt with the material in the Confidential Exhibits RC1, RC2, and RC3. In addition the Tribunal had before it the withheld material which was examined during the confidential hearing.

60. In my view it is necessary to incorporate what transpired in the confidential session by way of confidential reasons. That session occurred only in the later session on the final hearing date of 2 March 2018 after the conclusion of the open evidence and submissions. The applicant and their representatives were not present when confidential submissions and evidence was dealt with by the Tribunal. Both the Cabinet and the s 14 grounds were canvassed in the confidential session.

Not for publication confidential paragraphs

61. Not for Publication

62. Not for Publication

63. Not for Publication

64. Not for Publication

65. Not for Publication

66. Not for Publication

67. Not for Publication

68. Not for Publication

Confidential consideration

69. Not for Publication

70. Not for Publication

71. Not for Publication

72. Not for Publication

End of confidential paragraphs

Open Hearing

73. Two of the respondent’s witnesses gave evidence in open session.

Witness 1

74. Ms Gold the General Manager of the Firearms Registry and the deponent of ‘R-1’ and ‘R-3’ advised that she was a member of the Firearms and Weapons Policy Working Group (FWPWG). The witness gave evidence of two records that she was involved in drafting. Those documents related to a brief concerning the importation of the Adler A110 and classification.

75. The witness advised that certain elements of the advice contained in the brief are sensitive from a law enforcement perspective and should not be released to the public. Other entities who contributed to the matter were consulted and advised that their understanding was that the material would remain confidential.

76. The witness gave evidence that to her understanding the position of the Commissioner of Police or the Minister for Police was not settled in respect of the brief. The witness gave evidence about the timing of the meetings and the dissemination of papers via the Commonwealth to the member entities (from the States and Territories). Usually there is only a week to prepare and provide a jurisdictional position on the relevant matter. Preparation involves consultation with a number of interested arms of government and matters occur with a tight ‘turn around’ time.

77. During evidence in chief the witness was asked whether she was aware of any situations where this ‘confidential material’ and deliberations were disclosed. The witness gave an example of a situation in recent years where colleagues were returning to Sydney from a FWPWG meeting and received phone calls from media while waiting at the airport. This was a matter of some concern and the witness purported in her evidence to understand the circumstances of that release, which were raised at subsequent meetings. Measures were put in place and papers were disseminated even closer to the meeting which impacted on how NSW prepared for FWPWG meetings.

78. In cross examination the witness was asked about the context of the ‘leak’, and whether it was during a public debate about the lever action shotguns and that the number of Category A licence holders was leaked. The witness confirmed that due to leaks some trust of other members of the group had been lost.

79. When questioned about the difficulties in properly preparing for meetings and preparing a brief (due to the changes to the timeframes), the witness confirmed that she did provide the advice – to the best of her ability notwithstanding the limited timeframes imposed.

80. In re-examination the witness was asked what prejudice attached to the working groups functions. She advised that the prejudice was due to the disclosure not any implied breach of trust on the members. The witness reiterated her understanding that what is discussed between the members remains confidential.

81. Various questions and answers in cross examination focused on the motivations of staff in how they managed information in a business / transactional sense, and their understanding of the statutory impact of the GIPA Act on that business information.

82. The Tribunal utilising the provisions of s 38 (6) of the NCAT Act inquired of the witness as to whether she was aware of the reason for the change in the flow of information from the Commonwealth to NSW in the context of the FWPWG. The witness advised that gleaned from discussions with other representatives on the FWPWG the change had come about as a direct response to the disclosure of information by some members of the FWPWG.

83. When asked whether there was any understanding of what such action would achieve the response was that there was a concern that the release would impact on the Government as any disclosure of that information would compromise the work of the FWPWG.

84. In further examination the witness agreed that there was a general concern about confidential information being made public. References were made by the applicant to the Public Service Commissioner’s Guidelines and how they seemed somewhat at odds with the landscape of these working groups and briefings as outlined by the witness.

85. In written affidavit evidence the witness deposed that the Police requested a full regulatory and costing analysis of all the proposed amendments to the NFA (Following their consideration by Cabinet) for Cabinet. This occurred in early 2016 in order to assist in developing a State position to take to the National Justice Police Senior Officers Group (NJPSOG) meeting in March 2016.

Witness 2

86. Ms Grimstad the Principal Advisor Office of the NSW Police Commissioner and the deponent of ‘R-2’ and ‘R-4’ advised that she coordinated any responses requiring a ‘corporate position’ from the NSW Police. Her written evidence referred to the structure and background of the intergovernmental meetings and entities such as COAG, and NGPSOG and the Law Crime and Community Safety Council (LCCSC).

87. Her written evidence stated that appointments to these three groups (above) were subject to Cabinet agreement. The working groups roles were to deal with the technical issues that arose in the NFA following on from the Martin Place siege initial review of January 2015. In 2015 the Commonwealth imposed a ban on the Adler A110 because it held seven rounds of ammunition and was potentially capable of being modified to hold more rounds and functioned more like a ‘pump action’ shotgun.

88. In 2015 lever action shotguns were given a Category A (or least restrictive) rating, whereas as ‘pump action’ shotguns were classified either Category C or D being the two most restrictive categories of firearms as they were considered ‘rapid fire’. Whilst the Adler was under a ban it was decided to review all ‘lever action’ firearms which included other brands with different performance characteristics.

89. The witness deposed that in December 2016 there was agreement in principle at COAG and ultimately lever action shotguns with less than 5 rounds capacity were classified as Category B and those with more than five rounds were given a Category D classification. Subsequent legislative amendments in NSW and across Australia gave effect to these changes in early 2017.

90. Many paragraphs of the earlier affidavit (Exhibit ‘R-2’) convey the development and continuing evolution of the various committee positions and the need to present a ‘united front’ on matters. References to Cabinet are prefaced with matters being prepared prior to Cabinet adopting them, and that the Cabinet process was later in the chronology, but matters were under ‘active discussion in Cabinet’. (par 21).

91. The deponent also stated at par 21 of ‘R-2’ that:

Given that these issues are ultimately determined at a high level, so as to present a ‘whole of government’ position at intergovernmental meetings, I am concerned that revelation of the policy work will undermine collective Ministerial responsibility by revealing positions that may differ from the State position ultimately approved at Cabinet.

92. Attached to the affidavit of the witness were a number if annexures including the ‘Guidance on COAG Councils’ document of August 2016, and various e-mail responses from other jurisdictions concerning release under FOI type legislation of working group material.

93. In a further affidavit (Exhibit ‘R-4’) the witness states that:

9. As stated in my previous affidavit, and in response to the applicant’s statement at [56], firearms issues are very much a live issue both at State and national level.

94. Annexed to the affidavit were further responses from working group members about LCCSC, NJPSOG and FWPWG information release under the GIPA Act. The witness deposed that any position taken by the LCCSC had already been considered and endorsed by Cabinet for presentation to any meeting. Reference was made to the link between the NJPSOG and the LCCSC as the former provided a support function to the later and was subject to Cabinet consideration and determination.

95. The witness advised that her employer’s view was that the briefing documents are Cabinet in Confidence due to their use to brief the Minister prior to his attendance at Cabinet. Further evidence was given that the circulation between the working groups of that material was on the understanding that the information was confidential.

96. The annexures to the Grimstad affidavit contain evidence of the views of other jurisdictions to the release of the joint material under the relevant FOI laws. It appears that this evidence was gathered in accordance with the consultation provisions under s 54 (2) (d) of the GIPA Act.

97. Some States and Territories were unconcerned with disclosure of their material under NSW law, whereas others raised concerns. The concerns of approximately half of the responders related to a view that the material went before their respective Cabinets and was therefore Cabinet in confidence, and their usual practice was to not release such material if they received a request. The other jurisdictions consented to release as they understood from the nature of the request and information that release would have no adverse impact on their Agencies. The responders included the Commonwealth States, Territories and law enforcement bodies.

98. In oral evidence the witness advised that any material that went before the LCCSC went before Cabinet as well. The witness advised that she sat in on teleconferences at the NJPSOG level. In addition she always understood that the documents before the various bodies were confidential.

99. In cross-examination the applicant proposed that the NFA’s aim was public safety, not consistent standards as deposed in her earlier affidavit. The witness agreed with this proposition. Further examination occurred about the nature of the approval and vetting of the information before the NJPSOG and LCCSC. The witness agreed that the NJPSOG signs off approving material to LCCSC (or not approving it). Whilst LCCSC matters go to Cabinet NJPSOG matters do not necessarily go to Cabinet.

100. However the witness stated that she could recall examples of matters being sent to Cabinet merely for noting. It was suggested that the witness prepared advice and submitted it to the Minister’s Office. Where it went or what the Minister did with it after that (such as dealing with the Cabinet over it) was a separate issue beyond her knowledge. There was no contest on this observation. In addition the witness was challenged on part of her affidavit concerning the views of the other member jurisdictions to FOI release.

101. The applicant noted that some of the provisions of the annexure to ‘Exhibit R-2’ (the Guidance on COAG Councils document) do not refer to ‘confidentiality’ but rather refer to ‘sensitivity’ and ‘should’ rather than ‘must’ in respect of the provisions for handling COAG level information.

102. The witness was taken to paragraph 24 of her affidavit (Exhibit’R-2’) .

24. Further, it would undermine NSW’s participation in intergovernmental meetings if other jurisdictions were to subsequently learn of any disparities or differences in view from the one presented at the meeting.

It was suggested that based on the annexures to the affidavit concerning some jurisdictions consenting to FOI release of the relevant material these views were not held by all participants and that little weight should attach to that evidence.

103. The witness agreed that the specific issue in respect of lever action shotguns and the Adler models had now been resolved.

104. The Tribunal inquired into matters concerning the evidence of a somewhat heightened workplace environment and short turnaround time of the LCCSC, NJPSOG and FWPWG COAG environment. The witness advised that if the type of information in question was assessed as being appropriate for release, then changes would need to be made to the manner in which she performed her duties.

105. In written and oral submissions the respondent drew particular attention to the correct process for determining the Cabinet grounds relying on the cases of D’Adam v New South Wales Treasury [2015] NSWCATAP 61. In respect of the scope of the capture of the information under the Cabinet grounds, the respondent relied upon the reasoning in Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353 (Robinson). In Robinson the Tribunal found that if a document contained Cabinet information (in addition to other information) then because of the reference to the term ‘documents’ in Cl 2 of Sch 1, then the entire document is captured by the provision.

106. At [79] – [81] of Robinson the Tribunal observed:

79. The GIPA Act, unlike its predecessor the Freedom of Information Act, generally applies to information. This means that, if there is no overriding public interest against disclosure of the information, then an access applicant is entitled to be granted access to it, even if other information in the same document is subject to an overriding public interest against disclosure. The Cabinet information consideration, in cl 2(1) of Sch 1 to the GIPA Act, is different. It applies to information contained in a document meeting the description of any of the paragraphs (a) to (f) of cl 2(1). Thus, if the document meets such a description, all the information in the document is subject to an overriding public interest against disclosure.

80. A possible qualification to this is that, “to the extent that [information] consists solely of factual material,” it is not Cabinet information, unless specified circumstances apply (GIPA Act, Sch 1, cl 2(4)). It is unclear whether cl 2(4) is intended to allow for the provision of access to solely factual material in documents meeting a description in cl 2(1), or whether cl 2(4) applies where an entire document (for example one submitted to Cabinet) consists solely of factual material. In any event, Mr Robinson did not seek to rely on cl 2(4) and I do not consider that any of the documents in issue consist solely of factual material.

81. For these reasons, subject to the possible qualification referred to above, I do not consider that the GIPA Act permits the Tribunal, when conducting a review, to make a decision that an applicant be given access to some of the information in a document meeting the description of a paragraph in cl 2(1), and that the applicant be denied access to the remainder of the information. Rather, once the information is found to be contained in a document meeting the description of a paragraph in cl 2(1), the effect of cl 2(1) is that there is an overriding public interest against disclosure of that information.

107. Reliance was also made on the case of Cianfranco v Department of Commerce [2005] NSWADT 282 in respect of the concept of prejudicing collective Ministerial responsibility. At 57 of Cianfranco the Tribunal observed:

57   This exemption finds its justification in the primacy of Cabinet in the Westminster system of democratic government. It preserves the constitutional convention of collective ministerial responsibility. It seeks to ensure that what is said in Cabinet remains in Cabinet. As with any committee process, there will often be a range of views and a wide range of material canvassed before a final decision is reached. Under the Westminster system all Ministers are bound by the final decision, and must speak with one voice in relation to it. The same is true of other decisions taken on the way to the final decision. These principles are well-known, and they find their expression in such terms as ‘Cabinet solidarity’.

108. The respondent submitted that arising from Ms Grimstad’s evidence it is clear that the briefings contain the Minister’s position in relation to certain matters that were before Cabinet.

109. Further submissions were made concerning the information from the other jurisdictions, and the deliberative process. It was conceded that the deliberative process was largely concluded. However in closing the respondent observed that whilst the review of the NFA had been completed by COAG and ratified by each jurisdiction legislating, discussions concerning firearms continue at both State and national level.

Consideration

110. Whilst the GIPA Act provides that the Tribunal can only examine (initially) whether there were reasonable grounds for the claim, and that position is usually arrived at in the absence of the information in question, in the current case the Tribunal has all of the withheld documents.

111. As a result of having the information the Tribunal was able to efficiently deal with the real issues in dispute concerning whether the Cabinet grounds were made out. On this basis s 106 could be fully addressed in an efficient manner in the confidential hearing and when making a decision.

110. The currency of the matters concerning the Government’s development of the position on firearms and NFA reform was an ongoing theme in these proceedings. In my view the conclusion of that process, with the ultimate position being clearly on the public record goes some way to reducing the weight which can be attributed to many of the s 14 consideration as public interest considerations against disclosure.

111. At paragraph 50 of Smith I note that the Tribunal examined how the s 14 issues are approached and then made a finding in respect of the applicability of cl. 1 (e) for a concluded process. The Tribunal observed:

50. The relationship between the relevant sections of the GIPA Act that address the public interest considerations was examined in the ADT Appeal Panel case of Commissioner of Police, NSW Police Force v Camilleri:

28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:

58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872:

`The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'

29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words:

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

30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.

31. In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, if not seen as 'confidential information', would nonetheless prejudice the effective exercise by an agency of the agency's functions (cl 1(f)). As to the different spheres of operation of cl 9(d) and cl 1(f) and their connection to the provisions of the previous legislation, see generally, Robinson, New South Wales Administrative Law (NSWAL service) [50.6890] and [50.6930].

114. At paragraph 56 of Viva a similar conclusion was drawn by the Tribunal.

56. In any event, in this particular matter that process has been brought to an end by Viva Energy's withdrawal of its SSD DA. Put simply, there is no longer any deliberative process of government that could be prejudiced by release of the Documents.

57. Should Viva Energy exercise its right to lodge a fresh SSD DA in respect of modifying its project at Gore Bay Terminal, new documentation will need to be prepared and a new consultation process will commence. In my view it is unlikely that the disclosure of the Documents sought in this matter would impact on that process to any significant degree.

58. In the circumstances, I do not accept that disclosure of the Documents would prejudice a deliberative process of government or prejudice the effective exercise by an agency of the agency's functions.

115. The Tribunal has previously examined the meaning and approach to terms 'could be reasonably expected to' in prior GIPA Act decisions which themselves have drawn on statutory interpretation and precedent from Superior Courts. In Flack v Commissioner of Police (NSW) [2011] NSWADT 286 the Tribunal reiterated that there must be an objective assessment of the matter. At [41-43] the Tribunal observed:

41. The word 'reasonable' in the context in which it appears in clause 1 and 3 of the Table is that set out by the Tribunal in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. That decision concerned the construction of the words 'could be reasonably expected to' in clause 7(1)(c), of the Schedule 1 of the repealed FOI Act. These words were also contained in clauses 4, 4A, 5, 13(b), 14, 15, and 16 of Schedule 1 of the repealed Act. At [25] the Tribunal gave the following explanation on the accepted construction of these words:

'25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority . Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.'

42. That is, the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities.

43. In my view, the information in dispute if disclosed could reveal personal information about persons other than the applicant or her husband. To the extent the information is personal information about the applicant and her husband, I am satisfied that given the context in which this information is contained that if it is disclosed, that disclosure could reasonably be expected to reveal the personal information of the other persons.

116. The respondent submits that release of this information could reasonably be expected to create this result.

117. I note from the decisions under the GIPA Act and agree that the mere fact that such a matter would occur is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure.

118. I have carefully considered the arguments and submissions by both parties in this matter. The purpose of outlining some of the evidence in these reasons is to illustrate the complex nature of the competing arguments. One is the development of a policy position at a State level but incorporating relevant material gleaned from other jurisdictions into the overall mix so as to develop the position.

119. The analysis of the specific documents below where applicable adopts the grounds and evidence set out by the respective parties (as outlined in these reasons) in either affirming or setting aside the decision on each specific document.

120. The applicant (having regard to s 55 matters) believes that the Minister’s position may have differed from the position of the Commissioner of Police. As the respondent notes such a view anticipates a potential difference of view rather than knowing whether such a difference ever existed. However it appears that the documents may disclose some evidence of a shift of position which appears to be somewhat significant when the earliest and final positions are contrasted. In the process of developing the NFA changes it is clear that the various jurisdictions developed various iterations of their position along the way. For example document 40 appears to provide evidence of this nature. I will return to that document in due course.

121. I will now address each of the remaining documents in numerical order. Documents not in scope or duplicated documents have been excluded from this process.

122. Document 1 The material in document 1 concerns one paragraph within a briefing. It reads in a logical fashion concerning how a responsible authority deals with a potential public safety issue. I would have thought that the strongest ground for withholding the information would be in the nature of cl 2 (b) from the Table to s 14. This refers to prejudicing the prevention of a contravention or possible contravention of the law. The opinion in the paragraph arises in the context of a briefing to the Commissioner of Police to respond to a request from the Minister. Like much of the material the contents of the paragraph extrapolate the rationale for the position ultimately arrived at in the legislative amendments (the Category B and D listing of the firearms).

123. The argument that this position reflects the position ultimately arrived at by Cabinet, a position that the Minister took or was intending to take to Cabinet, or some other characterisation of how Cabinet’s position captures this information is advanced by the respondent. However notwithstanding that the material is consistent with what was ultimately advanced into the public record, the evidence in confidential affidavit ‘RC -3’ does not establish that this information was ultimately advanced by the Minister in Cabinet.

124. There appears to have been a development of the government position over a period of months and years in part due to developments of the position in the COAG and preliminary processes. The evidence does not go beyond the fact that ‘current discussions’ were occurring at Cabinet level about such matters. On the evidence before me I am not satisfied that the Sch 1 Cl 2 ground is made out and I so find. There is no significant evidence that the information in the relevant paragraph 4 of page 1 of the documents enlivens clauses 1 (e) or (f) of the Table to s 14 in any manner where significant weight can attach to the grounds. For that reason the public interest considerations against disclosure do not override the general public interest consideration in favour of disclosure.

125. Document 4 I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit ‘RC -3’. I reject the public interest considerations against disclosure grounds on the basis of the reasons advanced for document 23 (below). However I affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act being:

2 Cabinet information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents:

….

(e) a document prepared before or after Cabinet’s deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,

I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

126. Document 5 I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit 'RC -3'. I reject the public interest considerations against disclosure grounds (for similar reasons to those provided for document 23) but affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act.

127. I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

128. Document 6 I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit 'RC -3'. I reject the public interest considerations against disclosure grounds (for similar reasons to those provided for document 23) but affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act.

129. I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

130. Document 7 I note that the Cabinet grounds for documents 7, 8, 9, 10, 33 and 35 were only raised by the respondent near the end of the hearing. I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit 'RC -3'. I reject the public interest considerations against disclosure grounds (for similar reasons to those provided for document 23) but affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act.

131. I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

132. Document 8 I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit 'RC -3'. I reject the public interest considerations against disclosure grounds (for similar reasons to those provided for document 23) but affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act.

133. I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

134. Document 9 I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit 'RC -3'. I reject the public interest considerations against disclosure grounds (for similar reasons to those provided for document 23) but affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act.

135. I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

136. Document 10 I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit 'RC -3'. I reject the public interest considerations against disclosure grounds (for similar reasons to those provided for document 23) but affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act.

137. I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

138. Document 16 This information is sought to be withheld on overriding public interest considerations against disclosure grounds only. The grounds are similar to those discussed in the following paragraph concerning document 23 concerning cl 1 (c), (d) (e) and (f). In my view the applicant has the background to the documents as contained in paragraphs 9-12 inclusive of exhibit ‘R-1’. On that basis and the basis outlined below I attach minimal weight to the public interest considerations against disclosure and the material within scope can be released.

139. Document 23 Having reviewed Recommendation 18 from the document I note that it contains the position that is essentially adopted in the legislative amendments. There are two small portions of information that go to issues concerning the number of firearms (sought to be reclassified at ‘D’). There is also some discussion about modifications. I note that clauses 1 (c), (d), (e) and (f) and 7 (1) are relied upon by the respondent. In my view the majority of the information originally adopts the position ultimately agreed at COAG but for some five lines. The evidence at the annexure ‘EMG -2’ to Exhibit ‘R-2’ is not persuasive. The material has lost the currency claimed because of the fact that it reflects the ultimate position. There is no evidence in the information of views divergent or in any way contrary to the final position. Whilst the Commonwealth asserts that the information would fall into a conditional exemption, the information has not been tested in that regard, or further analysis explained. The s 14 grounds are not absolute but merely grounds which (once enlivened) are to be adjudged by the content and context of the information, as assessed for what weight if any can attach to the arguments to withhold.

140. In my view little weight attaches, notwithstanding that the objection is made. No third party has sought to appear before the Tribunal under the provisions of s 104 (3) of the GIPA Act. The matter has been before the Tribunal for three separate days of hearing and a directions listing all after the evidence was predominantly settled. If any further arguments were sought from third parties then those matters could have been raised initially by the respondent. I note that some third parties merely request that the respondent keep them advised of the progress of the matter and any proposal to release information.

141. I attribute little weight to the claimed considerations and the majority of the document will be released. A redacted version will be supplied with the confidential reasons so that the respondent can properly understand the material to be released.

142. Document 33 I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit 'RC -3'. I reject the public interest considerations against disclosure grounds (for similar reasons to those provided for document 23) but affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act.

143. I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

144. Document 34 This document contains some limited information on pages 196, 211 and 212 that is within scope. Broadly the public interest considerations against disclosure are couched in the same terms as those for document 23. In my view the material on page 196 being point 1. (a) (i) and (ii) can be released for the reasons set out in the reasons for document 23.

145. Likewise the material on page 211 under Recommendation 18 the three paragraphs following, and the fifth paragraph. Paragraphs 4, 6, and 7 should be withheld as there is strong evidence on the face of the documents that the information would effectively prejudice the effective exercise of the respondent’s functions.

146. The information on page 212 can be released as it is identical to the information in the last two paragraphs of Recommendation 18 on page 140 (Document 23).

147. Document 35 I note that the Cabinet grounds were only raised by the respondent near the end of the hearing. I have examined the material (where it is in scope) and the confidential evidence and annexures to Exhibit 'RC -3'. I reject the public interest considerations against disclosure grounds (for similar reasons to those provided for document 23) but affirm the Cabinet grounds. I find that the material falls within cl 2 (1) (e) of Sch1 of the GIPA Act.

148. I therefore find that due to the Cabinet Ground that aspect of the decision should be affirmed.

149. Document 36 There is a small suite of information on page 227 and slightly more on page 228 that is within scope. In my view for the reasons set out in respect of document 23, the public interest considerations against disclosure are of limited weight and that material (within scope) can be disclosed.

150. Document 39 I have carefully examined the documents within scope at pages 238, 240, 241 and 253. I note that page 253 has already been released. No specific submission is made in respect of page 238 and I note that the contents disclose nothing more than material already known and some administrative information such as sign offs etc. In my view the right hand columns of pages 240 and 241 should be withheld on the basis of the public interest consideration against disclosure at cl 2 (b) attracting sufficient weight. The remaineder of that document within scope should however be released.

126. Document 40 I have dealt with this document in some detail in the confidential paragraphs. In my view the disclosure of the document will have minimal potential to prejudice the effective exercise of the respondent of that specific firearms function. No evidence has been provided to establish any concern other than the possibility that release of the internal material could have a future or ongoing effect that is in some way detrimental. I attach little weight to the grounds and for the reasons above and in confidential paragraphs, that document should be released.

Conclusion

152. In my view the correct and preferable decision is to set aside the decision of the respondent in respect of some documents, vary the decision in respect of two documents and affirm the decision in respect of the remainder of the documents.

153. The decision of the respondent will be set aside in respect of documents 1, 16, 34, 36 and 40 and varied in respect of documents 23 and 39. The remainder of the decision will be affirmed.

Orders

1. The decision of the respondent is set aside in respect of documents 1, 16, 34, 36 and 40.

2. In substitution of that decision the respondent is to release the material in scope in those documents identified in order (1) within 28 days of the publication of these reasons.

3. The decision of the respondent is varied in respect of documents 23 and 39, and those documents are to be released after 28 days of the publication of these reasons in the form of the confidential annexures to the confidential reasons for decision.

4. The decision of the respondent is affirmed in respect of documents 4, 5, 6, 7, 8, 9, 10, 33 and 35.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 28 May 2018