Atkinson v Department of Premier and Cabinet and the Premier of New South Wales

Atkinson v Department of Premier and Cabinet and the Premier of New South Wales - [2023] NSWCATAD 45 - NSWCATAD 2022 case summary — Zoe

[4]

Background to access application

The background to the Applicant's application for access to these documents was summarised by the Appeal Panel in Christopher v Independent Commission Against Corruption [2022] NSWCATAP 118 at [5] -[14] as follows: 5. In July 2013, Commissioner Ipp made corruption findings under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) against certain directors of Cascade Coal Pty Ltd (Cascade Coal). 6. In October 2013, Mr McGuigan, Mr Atkinson and other directors of Cascade Coal applied to the NSW Supreme Court for judicial review of those findings. In July 2014, McDougall J dismissed the proceedings: Duncan v Independent Commission Against Corruption [2014] NSWSC 1018. 7. The directors of Cascade Coal applied to the NSW Court of Appeal for leave to appeal from McDougall J's decision. 8. Whilst that application was pending, the High Court handed down its judgment in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1. By majority, the Court construed the term "corrupt conduct" in the ICAC Act to be limited to conduct which could have affected the probity of the exercise of an official function by a public official, and held that it was insufficient if the conduct could have affected the efficacy of the exercise of an official function by a public official. This meant that ICAC's investigative powers were more limited than it had previously considered them to be. 9. On 20 April 2015, ICAC issued a public statement in response to the High Court's decision in ICAC v Cunneen in which it said that it had made a submission to the NSW Government to consider, as a matter of priority, amending s 8(2) of the ICAC Act to ensure that the section operated in accordance with its intended broader scope and making any such amendment retrospective. 10. On 23 April 2015, ICAC's solicitors wrote to the solicitors for the Cascade Coal directors, stating that it would consent to orders granting the Cascade Coal directors leave to appeal, allowing each appeal, setting aside the orders of the Supreme Court and declaring the corrupt conduct findings against each Cascade Coal director to be invalid. The parties subsequently provided consent orders to the Court of Appeal. 11. On 6 May 2015, the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (the Validation Act) was enacted and came into force. The Validation Act amended the ICAC Act so as to retrospectively validate anything done by ICAC that would have been validly done if the term "corrupt conduct" in the ICAC Act included conduct that adversely affects, or could adversely affect, the efficacy (but not the probity) of the exercise of official functions. 12. On the same day, as a result of the enactment of the Validation Act, ICAC withdrew its consent to the proposed consent orders in the Court of Appeal matter.
The following additional background facts are relevant to this application.
On 5 May 2015 the Premier published a media release which stated: [T]he Government will commission an immediate review to consider the High Court's decision and to make recommendations regarding the appropriate scope for ICAC's jurisdiction going forward. Mr Baird announced a distinguished legal panel will review ICAC's powers and report back to the Government by 10 July 2015, so that a second Bill, if deemed necessary can be introduced later this year.
By letter dated 6 May 2015 the Honourable Justice Beazley wrote to the legal representatives of the Cascade Coal directors, including Mr Atkinson. In that letter Her Honour indicated that the Court of Appeal had considered the parties' submissions and draft short minutes and that it was presently minded to make an order at a hearing on 8 May 2015 declaring ICAC had no jurisdiction to find that the Cascade Coal directors had engaged in corrupt conduct. Her Honour indicated that, because the form of the declaration proposed by the Court differed from the orders proposed by consent, the Court considered it appropriate that there be an opportunity for the parties to address the proposed form of the declaration.
On 27 May 2015 the Governor issued Letters Patent appointing a panel to conduct a review. The terms of reference provided that the Panel was: [C]ommissioned to consider and to report to the Governor on or before 31 July 2015 on: a) The appropriate scope for the ICAC's jurisdiction - Any legislative measures required to provide the ICAC with the appropriate powers to prevent, investigate and expose serious corrupt conduct and/or systemic corrupt conduct involving or affecting, public authorities and/or public officials, and - Whether any limits or enhancements, substantive or procedural, should be applied to the exercise of the ICAC's powers.
On 30 July 2015 the Panel completed its report titled "Independent Panel Report - Review of the Jurisdiction of the ICAC" (Panel Report) which recommended that certain amendments be made to the ICAC Act and that certain other legislative changes which it had considered should not be made.
Subsequently, as the Appeal Panel in Christopher noted at [13] - [14]: 13.In September 2015, the Independent Commission Against Corruption Amendment Act 2015 (NSW) was enacted. It amended the definition of "corrupt conduct" in the ICAC Act and made some other amendments to that Act. 14.In June 2016, the Court of Appeal dismissed the appeals by Mr Atkinson and each of the Cascade Coal directors: Duncan v Independent Commission Against Corruption [2016] NSWCA 143.
In May 2020 a Parliamentary Committee on the Independent Commission Against Corruption (Committee) instituted an inquiry into the reputational impact experienced by people named in ICAC investigations.
On 18 September 2020 ICAC solicitor, Mr Roy Waldon, appeared before the Committee. He gave evidence that ICAC and its officers knew of the NSW government's intention to pass the Validation Act, but not the timing of it. He also accepted that, but for the passage of the Validation Act, ICAC would have consented to orders overturning the corruption findings against Mr Atkinson and the other Cascade Coal directors as it would have "had no basis on which to oppose the appeal".
On the same day, while questioning Mr Bruce McClintock SC, the Inspector of ICAC, the Honourable Adam Searle said: I think Mr Waldon said that ICAC had essentially recognised it had no legal defence and was going to agree to [findings of corrupt conduct being set aside]. Two days before that was to take effect this Parliament of which we are members legislated those rights out of existence retrospectively. I was a member of that Parliament and I voted in favour of that legislation. But the existence of that litigation and the reaching of the in-principle settlement between the ICAC and those persons was never disclosed to the Parliament. Had it been it is possible that the Parliament … might have reached the view that those litigants were entitled to the finding if the court was otherwise persuaded to make it.
The Committee issued its report dated 25 November 2021 titled "Reputational impact on an individual being adversely named in the ICAC's investigations". That report noted that it had also examined the issue of the Validation Act. It stated: However, there were a small group of persons who had legal rights prior to the enactment of the Validation Act as a result of the Cuneen decision and had gone to Court to have findings against them set aside. Their case was settled with the ICAC and orders were to be entered by the NSW Court of Appeal. These legal rights were retrospectively extinguished by the Validation Act. The Parliament was not informed of this matter during the debate on the Validation Act. The Committee is of the view this limited cohort of persons should have those legal rights reinstated by legislation.

[5]

Application for access to information and application to the Tribunal

On 15 November 2021 the Applicant lodged an application for access to 5 categories of government information under s 51 of the GIPA Act.
On 7 December 2021 the First Respondent notified the Applicant that it was considering making a decision to refuse to deal with the application on the basis that it may constitute an unreasonable and substantial diversion of resources under s 60(1)(a) of the GIPA Act and invited the Applicant to narrow the scope of his application.
The Applicant then refined his application to documents returned by undertaking key word searches for Independent Commission Against Corruption Amendment (Validation) Bill and Independent Commission Against Corruption Amendment (Validation) Act in the First Respondent's file management system dated between 1 April 2015 and 30 September 2015.
On 8 February 2022 the First Respondent provided access to 8 documents and refused access to 44 documents on the basis that the documents constituted Cabinet Information within the meaning of cl 2 of Schedule 1 to the GIPA, and/or were subject to a claim for legal professional privilege or on the basis that the documents contained "excluded information" of ICAC within the meaning of cl 6 of Schedule 1 to the GIPA.
On 8 March 2022 the Applicant made an application for internal review of the First Respondent's decision in respect of 12 documents.
On 16 May 2022 the First Respondent decided to refuse access to the 12 documents on the basis that the documents constituted Cabinet Information and/or were subject to a claim for legal professional privilege.
That is a decision which is administratively reviewable by the Tribunal by virtue of s 80(d) of the GIPA Act.
On 7 July 2022 the Applicant applied to the Tribunal for administrative review of that decision. There is no dispute that the application was filed within time.
The Premier of New South Wales is joined as a Respondent in the proceedings in accordance with s 106(5) of the GIPA Act and was represented in the proceedings by the same counsel as the Department of Premier and Cabinet. The Department of Premier and Cabinet is referred to in these reasons as DPC or the First Respondent. A reference in these reasons to the Respondents is a reference to the Department of Premier and Cabinet and the Premier.
The Applicant is referred to in these reasons as the Applicant or Mr Atkinson.
The Independent Commission Against Corruption is referred to as ICAC.

[7]

Relevant Legislation

The object of the GIPA Act is set out in s 3 of the Act. That section provides that, in order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of the Act is to open government information to the public by, amongst other things, giving members of the public an enforceable right to government information and providing that access to government information is restricted only when there is an overriding public interest against disclosure. Section 3(2) provides that it is the intention of Parliament that the Act be interpreted and applied so as to further that object.
"Government information" is defined by s 4 of the Act as information contained in a record held by an "agency" which is, in turn, defined to include a "Public Service agency". "Public Service agency" is defined in Schedule 4 to the Act as a Public Service agency under the Government Sector Employment Act 2013 (NSW), which in turn defines, by s 3 of that Act, a Public Service agency to include a Department listed in Part 1 of Schedule 1 to that Act. Part 1 of Schedule 1 to that Act includes the Department of Premier and Cabinet, the First Respondent.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 of the GIPA Act provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
Section 13 provides that there is an overriding public interest against disclosure of government information for the purposes of the Act if (and only if) the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.
However, section 14 of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of certain government information described in Schedule 1.
Schedule 1 Clause 2 relates to Cabinet information and provides: 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.
Schedule 1 Clause 5 relates to legal professional privilege and provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
Schedule 1 Clause 6 relates to excluded information and provides: 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
Schedule 2 Clause 2 sets out excluded information of particular agencies and, in so far as ICAC is concerned, provides that excluded information is information that relates to ICAC's corruption prevention, complaint handling, investigative and reporting functions.

[9]

Cabinet information

As the Tribunal identified in Australian Education Union, NSW Teachers Federation Branch v New South Wales Department of Education [2022] NSWCATAD 97 at [12], there is a special procedure which the Tribunal must follow in respect of claims that documents comprise Cabinet information: 12 Whereas typically, in determining an application for administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s 63 of the ADR Act), the GIPA Act sets out a special procedure for the Tribunal to follow with respect to decisions about Cabinet information and Executive Council information, as follows: 106 Decisions about Cabinet and Executive Council information (1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter. (2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it. (3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter. (4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter. (5) The Premier is a party to any proceedings on an application under this section.
Senior Member Walker explained the operation of section 106 in D'Adam at [45] -[46] as follows: "45 No doubt in recognition of Cabinet's role and functioning as a collective, indirectly elected executive branch of government, s 106 establishes a special and very different decision-making matrix for claims to the Cabinet information presumption. Not only is the tribunal "limited to deciding whether there were reasonable grounds for the agency's claim", but it is explicitly "not authorised to make a decision as to the correct and preferable decision on the matter" (s 106(1)). The tribunal's task is thus not to investigate the claim de novo or to engage in normal merits review. Its function is more analogous to that of a court undertaking judicial review. 46 In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". "Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them".
Accordingly, on this application, in so far as the claims of Cabinet information are concerned, the Tribunal is limited to deciding whether there were reasonable grounds for the claim that the documents constitute Cabinet information: Bennison at [19]. If the Tribunal is satisfied there were reasonable grounds for the claim, that is the end of the Tribunal's inquiry.
If, on the basis of the Respondents' evidence and submissions, the Tribunal is not satisfied that the First Respondent had reasonable grounds for its claim in relation to a document, the Tribunal may then require the document to be produced in evidence before it in accordance with section 106(2): Bennison at [20].
The parties were in agreement that the above approach was the correct approach for the Tribunal to take with respect to claims for Cabinet information. They did not agree, however, on the approach the Tribunal should then take if the Tribunal, having reviewed the document(s) was still not satisfied that the Respondent had reasonable grounds for its claim. In short, the Applicant submitted that the Tribunal should proceed to make the correct and preferable decision while the Respondent argued that the Tribunal should remit the matter to the Respondent to enable the Respondent an opportunity to consider whether there may be alternative bases for refusing disclosure. In light of the decision I have made it is not necessary for me to address those arguments.

[11]

The material before the Tribunal and confidentiality orders made at the hearing

The Respondents rely on the Affidavit of Ms Kathryn Boyd, Deputy Secretary, General Counsel DPC, affirmed on 27 September 2022 as well as submissions dated 27 September 2022 and 1 December 2022 which were filed on a confidential basis. The Respondents submitted that certain aspects of Ms Boyd's evidence and of those submissions are confidential as their disclosure would result in information in respect of which there is claimed to be an overriding public interest against disclosure being revealed to the Applicant and to the public. Copies of Ms Boyd's affidavit and those submissions were provided to the Applicant with the material the subject of the claim for confidentiality (Confidential Material) redacted. The redacted version of Ms Boyd's affidavit was marked Exhibit R1, the non-confidential Exhibit to her affidavit was marked Exhibit R2. The unredacted version of her affidavit and a confidential exhibit to her affidavit filed confidentially were marked Exhibit CR3 and CR4 respectively.
The Respondents sought an order pursuant to s 64(1)(d) of the NCAT Act, that the disclosure of the Confidential Material be restricted to the Respondents, the legal representatives of the Respondents and the Tribunal, and that order was made.
Ms Boyd was cross-examined in relation to her open evidence.
The Respondents made open submissions to the Tribunal relying on the non-confidential evidence of Ms Boyd and referring to the Respondents' written submissions, other than the Confidential Material, as well as its submissions in reply.
The Applicant relied on his application and the materials filed in support of his application on 8 July 2022. He also relied on written submissions dated 15 November 2022 and counsel for the Applicant supplemented those submissions orally.
The Information Commissioner appeared, provided written submissions dated 5 December 2022 and supplemented those submissions orally.
Section 107 of the GIPA Act provides that the Tribunal must, on the application of the relevant agency, receive evidence and hear argument in the absence of the public, the Applicant and the Applicant's representatives if the Tribunal is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is claimed to be an overriding public interest against disclosure. Accordingly, after the close of those submissions, on the First Respondent's application, I made an order under s 49 (2) of the NCAT Act that the balance of the hearing be conducted in private so as to allow the Respondents to direct the Tribunal to the aspects of Ms Boyd's affidavit and submissions in respect of which confidentiality orders had been made. A short hearing was then conducted in private.

[14]

The Cabinet Process: General

Ms Boyd describes the process leading up to the making of decisions by Cabinet. She explains that Cabinet approval is required for all significant matters that affect the government as a whole including new policy proposals, proposals that require legislation and proposed responses to recommendations in reports of Parliamentary committees or other inquiries or reports proposing establishing or varying policy.
Ms Boyd annexes the NSW Cabinet Practice Manual to her affidavit which describes the process for the preparation of proposals to Cabinet, the processes under which a Submission is prepared by a government agency for a Minister to submit to Cabinet, lodgement of a Submission by a Minister to Cabinet and the circulation of the Submission to Ministers for consideration and advice. It also outlines the strict confidentiality procedures that apply to the handling of Cabinet documents which are designed to preserve the Cabinet convention of collective responsibility. Ms Boyd explains at some length the importance of ensuring that Cabinet documents remain strictly confidential and attaches the Premier's Memorandum: M2006-08 "Maintaining Confidentiality of Cabinet Documents and Other Cabinet Conventions" which states: Cabinet is the central and highest decision-making institution in government. Its workings are governed by long established practice and convention. As you are aware, a convention at the core of the Cabinet system of government is the collective responsibility of Ministers for government decisions. Ministers are collectively responsible for all Cabinet decisions and must publicly support them, even if they do not personally agree with them. The unauthorised and / or premature disclosure of Cabinet documents, including draft Cabinet documents (such as draft Cabinet minutes), undermines collective ministerial responsibility. It also undermines the convention of Cabinet confidentiality. It is accordingly essential that the confidentiality of Cabinet documents, including draft Cabinet documents, is maintained to enable full and frank discussions to be had prior to Cabinet making its decision.

[16]

The Cabinet Process for the Validation Bill

In her affidavit Ms Boyd says that it is her understanding from her review of a Cabinet Decision, her understanding of the general practice of Cabinet and her familiarity with the Cabinet Manual that the Validation Bill "will have" come before Cabinet because in 2015 (and at present) all proposed legislation must be approved by Cabinet before it can be introduced into either House of Parliament. Later in her evidence, and under cross-examination she confirmed that from her review of the documents and confidential Cabinet records which she also reviewed for the purpose of preparing her affidavit, she was satisfied that this did in fact occur. I note that the Cabinet Manual annexed to Ms Boyd's affidavit also states: Cabinet approval of legislation is required at two stages: - approval of the policy and to draft the Bill (known as "in principle" approval) - approval of the Bill itself and to introduce it into Parliament
Ms Boyd says that at the time the Validation Bill was prepared, PCO could only be requested to draft a Bill where "in principle" approval had been provided by Cabinet for the drafting of the Bill or where authorisation was provided by the Secretary or General Counsel of DPC.
When PCO is requested to draft a Bill, it provides a preliminary draft of the Bill to the department with responsibility for the Submission of the Bill to Cabinet for comment. There will often be extensive consultation between the department and PCO in respect of a draft Bill, with various revisions prepared. The purpose of this consultation is to ensure the Bill submitted to Cabinet is drafted in a manner consistent with Cabinet's "in principle" approval or with proposed Cabinet recommendations.
From Ms Boyd's review of DPC's files and records including the relevant Cabinet Decision she says that: 1. The Premier made a Submission to Cabinet with a recommendation; 2. Prior to the Cabinet meeting the Premier submitted revised recommendations to the Submission and a draft Validation Bill to Cabinet; and 3. On 6 May 2015 the Validation Bill was introduced and passed in both the Legislative Assembly and Legislative Council and received Royal Assent.

[22]

Document 28

Ms Boyd says that Document 28 is a briefing note for the Premier dated 25 May 2015 prepared by Ms Fiona Cameron, Principal Legal Officer Legal Branch, DPC titled "NuCoal - effect of recent Court decisions on claims for compensation". It has a sensitivity label "Legal". Ms Boyd says that at the time the note was prepared Ms Cameron would have held a practising certificate as that was a requirement of all legal officers in the DPC Legal Branch.
She says that the brief was prepared in response to a request made by email by the Premier's Chief of Staff to Paul Miller PSM, the then General Counsel of DPC for legal advice. A copy of that email is contained in the confidential exhibit to Ms Boyd's affidavit.
The second page of the brief contains a summary of a decision made by Cabinet which she says outlines the specific recommendations adopted by Cabinet with respect to an issue. Accordingly, she says, the document was prepared after Cabinet deliberation and reveals information concerning Cabinet's decision.
To the best of Ms Boyd's knowledge the document and the information contained within it has not been made publicly available by approval of the Premier or Cabinet and, she says, the document does not consist of solely factual material.
Ms Boyd has been unable to confirm if the brief was provided to a person outside the Office of the Premier as Ms Cameron and Mr Miller are no longer employed in DPC. However, from her review of the document and her experience as Deputy Secretary, General Counsel of DPC she considers it unlikely it would have been because the provision of legal advice by the Legal Branch is treated with the strictest confidence by staff in DPC and because a table entitled "for information" on page 4 of the brief indicates that it was only intended to be provided to Paul Miller PSM and the Premier.
Ms Boyd says that it is apparent from a review of the document and the email requesting the brief that Document 28 was a confidential document from the Office of General Counsel prepared for the dominant purpose of provision of legal advice to the Crown in the right of New South Wales.
Ms Boyd has been advised by the officer in the Legal Branch who undertook the internal review that there is no information on DPC records which would indicate privilege has been waived. She considers it unlikely that privilege would have been waived given the sensitive nature of the document.
She has also been informed by that officer that she considered whether it would be appropriate to waive privilege over the document before she made the decision on the internal review and decided that it would not.

[23]

Document 27

Document 27 is another briefing note prepared for the Premier by Ms Cameron dated 4 May 2015 entitled "Howarth - effect of recent High Court decisions on compensation claims". This brief has a sensitivity label "NSW Government". A copy of Document 27 is contained in the confidential exhibit to Ms Boyd's affidavit.
The brief states Ms Cameron's job title as Principal Policy Officer. However, Ms Boyd is informed by the Director of Information and Privacy, Legal Branch DPC that she has reviewed DPC's employment records recorded in its SAP system and they disclose that at the time the brief was prepared Ms Cameron was employed as a Principal Legal Officer in the DPC Legal Branch, that she held that role at all times whilst employed at DPC and at no point did she act in the role of a Principal Policy Officer.
Given the above, Ms Boyd understands that the reference to Ms Cameron as being a Principal Policy Officer is an error and that the brief was prepared by Ms Cameron in her role as a Principal Legal Officer.
The brief was prepared in response to a request made by the Department Liaison Officer in the Office of the Premier to Ms Cameron via email on 1 May 2015. That email referred to Court proceedings ongoing at the time of the email and states: "there has been a request for Legal to provide … [a] memo on this issue." A copy of that email is contained in the confidential exhibit to Ms Boyd's affidavit.
Ms Boyd has again been unable to confirm if the brief was provided to a person outside the Office of the Premier as Ms Cameron and Mr Miller are no longer employed in DPC. However, she again considers it unlikely it would have been because the provision of legal advice by the Legal Branch is treated with the strictest confidence by staff in DPC. Further, a table entitled "for information" on page 2 of the brief indicates to whom the brief was intended to be provided. That table indicates that the brief was provided to and approved by Mr Miller in his role as General Counsel on 13 May 2015. The only other person listed in the table is the Premier.
A shaded box on page 1 of the document outlines the concluded advice provided by Ms Cameron in the brief. The advice pertains to the implications that certain recent Court decisions have on claims made by Mr Howarth.
Ms Boyd says that it is apparent from a review of the document and the email it was prepared in response to that the document was a confidential document from the Office of General Counsel prepared for the dominant purpose of provision of legal advice to the Crown in the right of New South Wales.
Ms Boyd has been advised by the officer in the Legal Branch who undertook the internal review that there is no information on DPC records which would indicate privilege has been waived. She considers it unlikely that privilege would have been waived given the sensitive nature of the document.
She has also been informed by that officer that she considered whether it would be appropriate to waive privilege over the document before she made the decision on the internal review and decided that it would not.

[27]

Proper construction of clause 2(1) and 2(2)(a): submissions

Before turning to a consideration of the relevant documents it is convenient to deal first with an issue of construction raised between the parties as to the proper construction of cl 2(1) and 2(2)(a) of Schedule 1 to the GIPA Act which is relevant to the consideration of a number of the documents in dispute. I set out the text of those clauses again below for convenience. 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: … (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 (emphasis added)
The Applicant contends that cl 2(2)(a) should be understood as having the effect of taking information within a document, the disclosure of which has been approved, outside the cl 2(1) concept of Cabinet information. The Applicant argues that cl 2(2)(a) operates by reference to "information" rather than the "document" itself and submits that this is made clear by its chapeau ("Information contained in a document is not Cabinet information if" (emphasis added)).
The Applicant submits that any information contained within a document which has been approved for public disclosure is not, by force of cl 2(2)(a), Cabinet information within the meaning of any of cl 2(1)(a) through (e). The Applicant submits that it follows that, to the extent that any draft of a document which has been approved for public release contains the same information, that information is also not Cabinet information to which cl 2(1)(f) may apply. Therefore, it is submitted, drafts would only contain Cabinet information to the extent that the information contained within them differs from the information in the document approved for release and that differing information in itself falls within one of cl 2(1)(a) through (e).
The Applicant submits that because any unique information contained within a draft of a document finally approved for release may still fall within cl 2(1)(a) through (e), such a construction of cl 2(2)(a) does not allow for any risk of the release of unapproved Cabinet information.
The Applicant further submits that it would be open to the Tribunal to order the Respondent to provide to the Applicant redacted versions of any such drafts redacting the unapproved Cabinet information.
These submissions are supported by the Information Commissioner. The Information Commissioner submits that the whole of clause 2 should be interpreted as applying to "information" rather than "documents".
The Information Commissioner draws the Tribunal's attention to the deliberate change in the GIPA Act from the previous Freedom of Information Act 1989 (NSW) to a focus on "information" rather than "documents" and submits that the Tribunal should take an approach to the interpretation of these provisions which conforms with the objects of the Act being to make government information available.
She submits that, aside from the process that limits the role of the Tribunal in relation to Cabinet information (and Executive Council information) in s106 of the GIPA Act, nothing in the explanatory material in relation to the GIPA Act provides support for a reading of the Act that would extend protections to "documents" as opposed to the "information" contained in those documents. In fact, she says, to the contrary. She says that to interpret the whole of clause 2 by reference to a "document" rather than to "information" is inconsistent with the "paradigm shift" referred to by the Premier in his second reading speech on the Bill.
Further, she submits that s 74 of the GIPA Act presupposes that an exemption provision would not preclude release of information that is not itself the subject of an overriding public interest against disclosure. That section provides: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
The Information Commissioner draws the Tribunal's attention to the Freedom of Information Act 1982 (Cth) (FOI Act) which, she says, by contrast to the GIPA Act, retained a focus on documents. She drew attention in particular to the Cabinet confidentiality provision in s 34 of that Act which provides: 34 Cabinet documents General rules (1) A document is an exempt document if: (a) both of the following are satisfied: (i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted; (ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or (b) it is an official record of the Cabinet (c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or (d) it is a draft of a document to which paragraph (a), (b) or (c) applies. (2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies. (3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed. Exceptions (4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies. Note: However, the attachment itself may be an exempt document. (5) A document by which a decision of the Cabinet is officially published is not an exempt document. (6) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless: (a) the disclosure of the information would reveal a Cabinet deliberation or decision; and (b) the existence of the deliberation or decision has not been officially disclosed.
She also referred the Tribunal to a decision of the Australian Information Commissioner (AIC) in Phillip Morris Ltd v Department of Finance [2014] AICmr 27 where, in determining an application for access to edited or redacted versions of documents that the Respondent contended met the criteria for cabinet confidentiality under s 34 of that Act, the AIC stated at [34] - [36]: 34. There is no requirement to provide access to an edited copy of a document that is exempt under s 34(1). A document that is exempt under s 34(1) is exempt because of what it is: a Cabinet submission, an official record of the Cabinet, etc. No amount of editing of a copy of such a document would mean that access to that edited copy would be required to be given. The edited copy would still be of the same type as the original document, and still exempt. …. 36. The other exemptions in s 34 are different to the exemption in s 34(1). Section 34(2) provides that a document is 'an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies'. Section 34(3) provides that a document is 'an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision …' (I have added the emphasis in each case.) Because, for each of these exemptions, the document is exempt only to the extent that it satisfies the requirements of the provision, it will often be possible to edit a copy of the document so that access to that edited copy would be required to be given.
The Information Commissioner submits that there is at least an analogy in the way in which the Commonwealth Act has been interpreted that suggests it is not necessary to find that no redaction is possible when what is in issue is "documents" that fall within the Commonwealth Act's equivalent of clause 2 of Schedule 1 of the GIPA Act. By reference to that, she says, the Tribunal ought to consider restricting release only of "information" where to do so is absolutely necessary to maintain the principle of Cabinet confidentiality on which clause 2 is based.
The Respondents submit cl 2(2)(a) is, by its express terms, concerned with the documents which have been approved for public disclosure rather than the information contained in those documents. Such a construction, the Respondents says is consistent with: 1. the language in cl 2(1), which differentiates between information and the various documents enumerated in cl 2 (1)(a) through (f) in which that information is contained; 2. the fact that cl 2(1)(f) contemplates that there may be different and distinct documents (namely drafts) to those recorded in sub-clauses (1)(a) to (e) which drafts are themselves capable of constituting Cabinet information; 3. cl 2(4), which, the Respondents say would not be required on the Applicant's construction.
Accordingly, the Respondents submit, while drafts of a document may contain some of the same or similar information to the final version of the document, approval for the public disclosure of the final version of a document does not deprive draft versions of that document of their confidential and protected character. That conclusion, they say, is supported by the fact that cl 2(2)(a) is predicated upon the approval of Premier or Cabinet for the public release of "the document".
The Respondents submit that protecting the confidentiality of drafts is consistent with the underlying policy of the GIPA Act being to reconcile transparent governance with the confidentiality of Cabinet processes and deliberations.

[28]

Proper construction of clause 2(1) and 2(2)(a): conclusion

As the Information Commissioner acknowledged the proper construction of cl 2(1) has previously been considered by the Tribunal in Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353. In that case the Tribunal found that documents which meet the description of any of the paragraphs of (a) to (f) in cl 2(1) may not be redacted, holding as follows at [78] to [81]: 78 Mr Robinson made the submission, in relation to particular documents which were subject to the claim that they contained Cabinet information, that those documents could be released in a redacted form. That is, he submitted that where only some of the information in a document was Cabinet information, he should be given access to the remainder… 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. (emphasis added)
This approach was not challenged on appeal and has since been followed by the Tribunal in Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6, Australian Education Union and Fiddletown Investments Limited v Department of Premier and Cabinet; Fiddletown Investments Limited v NSW Treasury [2021] NSWCATAD 17, although I agree with the Information Commissioner that in at least the first two of those cases the parties had acknowledged they accepted that was the correct approach so the Tribunal was not required to turn its mind to the question.
I agree with the Tribunal's analysis in Robinson. While the GIPA Act may generally apply to "information" I agree that it is clear from the language of the legislation that, in so far as the Cabinet information presumption is concerned, it applies to all information in any documents which meet the description of the documents described in cl 2 (1)(a) to (f).
Indeed it is clear from a review of the Schedule as a whole that Schedule 1 to the GIPA Act operates to apply a conclusive presumption to, in some cases, different categories of information, and in others, to all information in different categories of documents. I attach Schedule 1 of the GIPA Act as an annexure to these reasons. A review of the schedule reveals that in some clauses the presumption applies to "information" (clauses 1, 4, 5, 6, 8, 9 12(2) and 13), while in other clauses the presumption applies to "information contained in" certain documents (or in some cases "reports" or "plans of management" (clauses 2, 3, 5A, 7, 12, 14, 15, 16). In my view this reveals a deliberate choice to use different language according to the circumstances.
It is difficult to see how the phrase "information contained in a document" in clause 2(1) could mean anything other than all of the information contained in the relevant document because the clause (mostly) directs the reader only to categories of documents, not to any specific information within documents of the relevant nature. If it did not mean that it applied to all information in such documents, it would not be possible to determine which information within those documents it did apply to.
Accordingly, I agree that once a document meets the description of any of the paragraphs (a) to (f) of cl 2(1) all information in that document, that is the entire document, is subject to the conclusive presumption of an overriding public interest against disclosure.
The Tribunal in Robinson did not specifically consider cl 2(2)(a), but the language used in that clause is (deliberately in my view) identical to the language in clause 2(1) and, in my view, should be given a consistent meaning.
I agree with the Respondents that the use of the word "the" in cl 2(2)(a) before the word "document" makes it clear that it is the document which has been approved for disclosure, rather than the information contained in the document, that loses the status of Cabinet information. The effect of cl 2(2)(a) is that the presumption cannot be claimed with respect to a document which has been approved for pubic release. But it does not follow, in my view, that another document which contains some or all of the same information as was contained in that document thereby loses its status (entirely or to some extent) as Cabinet information if it otherwise satisfies the description of a document identified in cl 2(1) (a) - (f).
As the Respondents submit, this construction is supported by the presence of cl 2(1)(f) and cl 2(4). If the Applicant's construction were accepted, namely that the presumption attaches to the information rather than the document in which it is contained, then neither cl 2(1)(f) or 2(4) would be required.
This analysis is not changed by s 74 of the GIPA Act. As explained above, the presumption applies, in some cases, to certain information and, in others, to all information in certain categories of documents, such that s 74 still has work to do in those cases where the presumption applies to information.
The AIC's remarks in Phillip Morris lend support to this construction and not the construction for which the Applicant and the Information Commissioner contend. The AIC explains that where a document as a whole is exempt, it cannot be redacted, but where a document is only exempt "to the extent that" it contains certain information, then it might be possible to redact that information from that document. Contrary to the submission made by the Information Commissioner, while the legislation may more generally be focussed on "information" compared to the Commonwealth FOI Act, a deliberate distinction has been drawn in the GIPA Act between cases in which the presumption will apply to all information in certain categories of document (that is the whole document) and when it is to apply only to certain information. This is similar, in my view, to the Commonwealth approach in s 34 of the FOI Act to exempt, in some cases, documents and, in other cases, documents only to the extent they contain certain information. The Applicant and the Information Commissioner's argument effectively requires one to read into the language of cl 2 the words "to the extent that" or "in so far as" and there is no warrant for that. I must give the words of cl 2 the meaning the legislature intended them to have. In my view the legislature did intend the words of cl 2 to have their literal meaning and this is not a case where it is appropriate to read the provision in a way that does not correspond to its literal meaning.
Just like the exempt documents under the Commonwealth Act, no amount of editing of a document which falls within the description of a document in (at least paragraphs (a), (b), (c) or (f) of) cl2(1) will render that document a different type of document.
I agree that it is not possible for the Tribunal to order that a redacted copy of any document meeting the description of a document in cl 2(1) be provided. If a document meets the description of a document in cl 2(1), all of the information in that document is subject to the conclusive presumption, so (even if some of the information may also have been contained in a document which has lost the status of Cabinet information because it has been approved for public release) there is nothing to redact.
It follows that I do not accept the Applicant's submission that a draft of a document which has been approved for public release only contains Cabinet information to the extent that the information in that draft differs from the document approved for release and that different information itself falls within one of cl2(1)(a) -(e). I agree with the Respondent that approval of a document for public release strips that document of its status as Cabinet information but cl2(2)(a) does not have the effect that drafts of that document, to the extent that they contain the same information, also lose their status as Cabinet information.
I do not have any concern that this construction is not consistent with the object of the GIPA Act. In fact, the Second Reading Speech the Information Commissioner referred the Tribunal to makes it clear that Cabinet information (as well as certain other categories of information) was to remain in a special category which would enjoy the benefit of a conclusive presumption that there is an overriding interest again disclosure, with the then Premier saying: The bills continue to ensure that the confidentiality required in respect of Cabinet information, law enforcement and safety information, sensitive commercial information and private information will be adequately protected. The new legislation specifies some information for which it is conclusively presumed that there is an overriding public interest against disclosure.
It is to be noted that law enforcement and safety information, to which the Premier also referred in this excerpt, is afforded the conclusive presumption by cl 7 of Schedule 1. That clause also provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of "information contained in" certain categories of documents.
As the Tribunal said in D'Adam at [41] -[42]: 41.Any application of the GIPA Act must start from an awareness of the legislation's object as stated in s 3(1), namely, to maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective by opening government information to the public and providing that access to that information is restricted only when there is an overriding public interest against disclosure. In s 3(2) the Legislature expresses its intention that the Act should be interpreted and applied so as to further the object of the legislation. 42. That object is to be achieved through a balanced approach that seeks to reconcile the competing values recognized by the Act. As four members of the High Court pointed out in Kline v Official Secretary to the Governor-General [2013] HCA 52, "The FoI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increase public participation and scrutiny, by making information freely available to persons on request, and in the exempting of other government processes and activities from public participation and scrutiny, in order to secure a competing public interest in non-disclosure". For some functions of government, "freedom from interference or scrutiny by members of the public.... is an essential aspect of the making of decisions" (at [37], also [46] -- [47]). The Court had earlier recognized a manifest public interest in keeping Cabinet deliberative processes confidential in Commonwealth v Northern Land Council (1993) 176 CLR 604, 615-616.
It is worth restating the High Court's reasons in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615 - 616 to which the Tribunal there referred. In that case the High Court unanimously said: … [it] has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential. Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government. Moreover, the disclosure of the deliberations of the body responsible for the creation of state policy at the highest level, whether under the Westminster system or otherwise, is liable to subject the members of that body to criticism of a premature, ill-informed or misdirected nature and to divert the process from its proper course. The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny. (citations omitted)
As the Appeal Panel stated in Transport for NSW & Ors v Robinson [2018] NSWCATAP 123 at [23]: It is clear that the exemption in the Act acknowledges the central position of Cabinet in government and gives effect to the need to ensure that decision-making and policy development by Cabinet is uninhibited.
I now turn to consider the disputed documents.

[29]

Documents 9.1 and 10.1

The Respondents submit that there are reasonable grounds for the claim that Documents 9.1 and 10.1, being drafts of the Validation Bill, constitute Cabinet information pursuant to cl 2(1)(c), (e) and (f) of Schedule 1 to the GIPA Act.
It will be recalled that those subclauses relate to: (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), (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, and (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).
As to cl 2(1)(c), the Respondents submit that because the preparation and introduction into Parliament of a Bill is, and was at the relevant time, subject to an approval process whereby Cabinet would approve the preparation of a Bill and/or its introduction into Parliament, a Bill, by definition, would ordinarily constitute a document prepared for the purpose of being submitted to Cabinet for approval to be used for the dominant purpose for which it was prepared. They say this is because a Bill's primary purpose is for it to be introduced into Parliament and the Cabinet process is that a Bill requires Cabinet approval before it can be introduced into Parliament. The Respondents stress that cl2(1)(c) by its terms does not necessitate a finding that the document was actually submitted to or approved by Cabinet.
They argue that it is also reasonable to conclude that the documents attract characterisation as Cabinet information pursuant to cl2(1)(e).
Further they submit that, should the Tribunal accept that the Validation Bill constitutes Cabinet information within the meaning of cl 2(1)(c) or (e), it necessarily follows that Documents 9.1 and 10.1 fall within the remit of cl 2(1)(f).

[31]

cl 2(1)(e)

The Appeal Panel explained in Transport for NSW & Ors v Robinson at [19] that cl 2(1)(e) involves a three step process: 19.A plain reading of the provision makes clear that it involves the following steps. (1) there must be a document prepared either before or after Cabinet's deliberation or decision on a matter; (2) it must reveal or tend to reveal a defined position; and (3) the defined position is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet.
The provision is also not limited to information that was actually deliberated upon or went to Cabinet: Transport for NSW & Ors v Robinson at [20].
While Ms Boyd's evidence is heavily redacted, it is clear from her open evidence that the Premier made a Submission to Cabinet with a recommendation and that prior to the Cabinet meeting the Premier submitted revised recommendations to the Submission and a draft Validation Bill to Cabinet.
It is also Ms Boyd's evidence that both documents 9.1 and 10.1, being earlier drafts of the Validation Bill, were created before Cabinet's deliberation and tend to reveal the position the Premier was considering taking and recommending to Cabinet.
The Applicant submits that the redacted evidence does not make good that conclusion. I agree.
[NOT FOR PUBLICATION]
Document 9.1 and 10.1 were each created before Cabinet's deliberation on a matter.
I agree with the Respondents that the lack of direct evidence from those within DPC involved in the preparation of the drafts should not necessarily prevent a finding that the documents satisfy the description of a document in cl 2(1)(e). On the basis of the confidential evidence I accept that the Respondents have established that Document 9.1 would tend to reveal a defined position, in the sense required by Transport for NSW & Ors v Robinson, that the Premier was considering taking and recommending to Cabinet. However, even on the basis of the confidential evidence I do not think the Respondents have established that Document 10.1 would tend to reveal a defined position the Premier was considering taking and recommending to Cabinet.
As such, I consider that there were reasonable grounds for the claim that Document 9.1 constitutes Cabinet information pursuant to cl2(1)(e) but I do not consider there were reasonable grounds for that claim in respect of Document 10.1.

[32]

cl 2(1)(f)

The Applicant submits that, absent evidence that the Validation Bill would not have been introduced to Parliament by the Premier but for the approval of Cabinet (which he submits the Respondent has not established) the Respondents have not shown sufficient grounds for claiming that the final Validation Bill was prepared for Cabinet's approval. The Applicant says it follows that the final Validation Bill would not be Cabinet information under cl2(1)(c), with the consequence that the Respondents cannot rely on cl2(1)(f) in respect of drafts of that Bill.
Ms Boyd's evidence is that "all proposed legislation must be approved by Cabinet before it can be introduced into either House of Parliament" and this is also reflected in the Cabinet Manual, although I note that the Manual's language is "should" rather than "must".
The Applicant says that while the approval of Cabinet may conventionally be sought prior to the introduction of a Bill to Parliament, such convention is imposed by the Premier only at his pleasure.
However, the redacted evidence establishes that a Validation Bill was in fact submitted to Cabinet by the Premier with a recommendation.
[NOT FOR PUBLICATION]
As such, I consider that the Respondents have established that the draft Validation Bill which was submitted to Cabinet was prepared for the purpose of being submitted to Cabinet for approval and as such constituted Cabinet information pursuant to cl 2(1)(c). I also consider that the draft Validation Bill submitted to Cabinet was a document prepared before Cabinet's deliberation on a matter which reveals the position the Premier was considering taking on the matter in Cabinet and as such constituted Cabinet information pursuant to cl 2(1)(e).
As Documents 9.1 and 10.1 are earlier drafts of that document it follows from my conclusion as to the proper construction on cl 2(2)(a) that I agree that there were reasonable grounds for the claim that Documents 9.1 and 10.1 constitute Cabinet information pursuant to cl2(1)(f) notwithstanding that the final Validation Bill was approved for public release.

[34]

Cl 2(1)(e)

The Respondents rely on cl2(1)(e) in respect of Document 15, an email chain between staff in the legal branch of DPC and legal staff at ICAC.
In respect of the claim that the document comprises Cabinet information, again Ms Boyd's evidence is that this document tends to reveal the position that the Premier was considering taking and recommending to Cabinet and again this is challenged by the Applicant. The Applicant submits that it does not follow merely from the fact that drafts of the Validation Bill may have been informed by commentary by ICAC staff that the email would reveal or tend to reveal a defined position of the Premier. Again, I agree.
[NOT FOR PUBLICATION]
As such, on the basis of the unredacted evidence, I agree that Document 15 would tend to reveal the position the Premier was considering taking and recommending to Cabinet and that, as such, there were reasonable grounds for the claim that Document 15 constitutes Cabinet information pursuant to cl2(1)(e).
I note that document 15 comprises an email chain. There is no evidence before the Tribunal as to how many emails there are in the chain and there is no evidence before the Tribunal as to the contents of any emails in the chain other than the original email and the third email. Ms Boyd has separately been able to review the original email in the chain for the purposes of identifying the document which was originally attached to that email. I understand, however, that the individual emails in the chain may not have been separately caught by the keyword searches undertaken by the Respondents to identify documents responsive to the Applicant's access application. It is not clear why that may have been the case because, on the basis of Ms Boyd's description, the original email and the third email would appear to respond to the search terms. Nevertheless, while it is possible that there may be emails in the chain which would not have attracted the presumption on a stand-alone basis, for the reasons I have given, I do not consider it is open to order that a redacted copy of the document which I am required to consider, namely a document comprising an email chain, be provided to the Applicant given that I have concluded that the document falls within the description of a document in cl 2(1)(e).

[35]

Excluded information

The Respondents also separately claim that information in Document 15 comprises "excluded information" within the meaning of cl 6 of Schedule 1 to the GIPA Act. The Respondent refers the Tribunal to Christopher at [53] where the Appeal Panel stated: 53 If a document written by ICAC concerned a proposed amendment to ICAC's functions (and could be construed as advocating for legislative change), the information in the document may nevertheless "relate to" ICAC's existing functions. A proposal to expand ICAC'S existing functions (for example) may, and probably would, contain information relating to ICAC's existing functions.
The Applicant submits that Christopher stands for the propositions that the excluded information provisions do not call for the application of a purposive test, and that a document which in part contains information relating to a proposed amendment to an agency's functions may also contain information relating to its existing functions. The Applicant submits, and I agree, that it does not foreclose analysis by the Tribunal of whether the Respondents have established that information in Document 15 "relates to" ICAC's specified functions.
The Applicant further submits that, while in Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [77] - [78] the Appeal Panel considered the phrase "relate to" to have a broad meaning in the sense of requiring a broad connection between the information in the document and one or more of the agency's functions, the connection must be of a sufficient degree or intensity for the information to "in substance" relate to the agency's functions. The Respondents take no issue with the Applicant's submissions in this regard.
The Applicant also submits that to qualify as "excluded information" the information must in substance relate to ICAC's "then existing" functions. The Respondents also do not cavil with that submission. I note, however, that the Appeal Panel noted in Christopher that there were some difficulties with that approach, but that it was not necessary to resolve the issue. In light of my findings below it is also not necessary for me to determine that issue.
Ms Boyd's evidence was that the third email in the chain of emails that comprises Document 15 sets out ICAC's views on the draft Validation Bill including in relation to the wording and phrasing of specific subclauses.
[NOT FOR PUBLICATION]
In their open submissions the Respondents note that the writer of the email identifies the way in which the proposed amendments to the ICAC Act would affect existing functions of ICAC, such as ICAC's reporting functions.
On the basis of the confidential evidence, I accept that the document contains information which relates to an existing relevant function of ICAC. I agree that if the information is information as to how the proposed amendments affect would that existing function, it in substance "relates to" that function.
The Respondents submit that, as such, it is within the "remit" of "excluded information" for the purposes of cl 6 of Schedule 1. They submit the fact that the document also otherwise concerns ICAC's position with respect to the proposed amendments does not deprive it of that character. I accept those submissions. I agree that information in Document 15 comprises excluded information within the meaning of cl 6 of Schedule 1 and attracts the conclusive presumption against disclosure.
However, I note that, if the only basis upon which the information in Document 15 was to be the subject of a conclusive presumption against disclosure was that it comprised excluded information, it would, in my view, be open to the Tribunal to make an order that the document be redacted to conceal only the information in the document which does relate to ICAC's functions as listed in Schedule 2 to the GIPA Act. However, as I have determined that the document also comprises Cabinet information, it is not open to me to do so.

[37]

Panel Report: 2(1)(b)

The Respondents submit that there are reasonable grounds for the claim that the Panel Report falls within the category of documents captured by cl2(1)(b), namely a document prepared for the dominant purpose of its being submitted to Cabinet for consideration. They submit that it was plainly contemplated that the Panel Report would be placed before Cabinet for consideration given the terms of reference provided for the Panel to make recommendations for legislative reform which would, by reason of Cabinet's ordinary processes come before Cabinet before "in principle" approval to draft legislation implementing those recommendations could be given or approval for any draft legislation to be introduced into Parliament could be given.
The Applicant says that the Respondents have not met their evidentiary onus in this regard. They submit that for cl 2(1)(b) to apply the document must have been prepared for the dominant purpose of being submitted to Cabinet and that test has the same meaning as in the context of legal professional privilege, namely that the purpose must be causative in the sense that but for its presence the information would not have been prepared: D'Adam at [51]. While it may have been contemplated that Cabinet ultimately would receive the final Panel Report, the Applicant says that the terms of reference and covering letter make plain that it was prepared for presentation to the Governor. Whether the Governor would then communicate the Panel Report to Cabinet, a particular Minister or Ministers or others was a matter outside of the knowledge or control of the Report's authors at the time of its drafting. Further, the Applicant submitted that there appear to have been a number of purposes for the creation of the document. They submit that there was a general public interest in understanding whether ICAC's statutory framework required recalibration. Further it was one possible outcome of the report that no changes to the legislation were recommended so it would not necessarily follow that the report would be submitted to Cabinet by the government of the day. Equally it was a possibility that other members of Parliament, not just the government of the day, may have wished to pick up and promote suggested amendments which had been rejected by the government. The Applicant submits that the Panel Report was always intended to be made public for public purposes.
I agree.
[NOT FOR PUBLICATION]
Nevertheless, it remains the case that the Governor issued Letters Patent appointing the Panel and the terms of reference provided that the Panel was commissioned to report to the Governor. On the evidence before me I do not consider the Respondents have established that the Panel Report was prepared for the dominant purpose of it being submitted to Cabinet. I do not consider Ms Boyd's evidence as to her understanding of the purpose for the development of the Panel Report is sufficient in this regard.
I therefore do not consider, on the evidence before me, there were reasonable grounds for the claim that the Panel Report satisfied cl 2(1)(b).

[39]

Document 27

The Respondents submit that Document 27, a briefing note prepared for the Premier dated 4 May 2015, is subject to a claim for legal professional privilege and therefore there is a conclusive presumption against disclosure under cl 5 of Schedule 1 to the GIPA Act.
The Tribunal has been provided with a copy of Document 27 and the email in response to which Document 27 was prepared on a confidential basis.
The relevant authorities with respect to claims of legal professional privilege under cl 5 of Schedule 1 to the GIPA Act were comprehensively summarised by the Tribunal in EMC v University of Sydney [2021] NSWCATAD 234 at [78] - [93]. The following principles, relevant to the documents in dispute in these proceedings, emerge from those authorities: 1. The weight of authority is that privilege under the GIPA Act refers to the concept of client legal privilege as defined in the Evidence Act. However, the Tribunal has accepted that, for the purposes of proceedings under the GIPA Act, the principles under the Evidence Act are effectively the same as those that apply under the common law. 2. The essential elements of client legal privilege are set out in sections 118 and 119 of the Evidence Act, namely:

the existence of a client and lawyer relationship;
the confidential nature of the communication or document; and
the communication or document was brought into existence for the dominant purpose of either, (a) enabling the client to obtain, or the lawyer to give, legal advice or provide legal services, or, (b) for use in existing or anticipated litigation. 1. Section 117 of the Evidence Act defines "client" to include an employer of a lawyer if the employer is a State or a body established by a law of a State. This confirms that in-house lawyers and their internal client may be subject to a claim of client legal privilege. The provision of advice by in-house lawyers in a government department has been held to be within the terms of s 117 however, in-house lawyers must possess independence in respect of the advice being given. This will be satisfied if personal loyalties, duties or interests do not influence the professional legal advice given. 2. A "dominant purpose" is one that predominates over other purposes; it is the prevailing or paramount purpose. Where two purposes are of equal weight, neither is dominant in the relevant sense; hence a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose. 3. The dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made, and its nature. Subjective purpose is a relevant consideration although not necessarily conclusive.

The Applicant submits that the Respondents have not established on the evidence that Document 27 satisfies the test for legal professional privilege. He submits that the fact the document states that it was prepared by Ms Cameron in the capacity of Principal Policy Officer points against the document being privileged. The Applicant criticises the Respondents for not adducing evidence from Ms Cameron as to the capacity in which she produced the document or as to the purpose for which the note was created. He argues that the Respondents have not established that Document 27 (or Document 28) satisfies the description of professional advice given by a lawyer in the context of a relationship which secures the advice an independent character or that the documents satisfy the dominant purpose test. (The Applicant also submitted at the hearing that test for legal professional privilege is the "sole purpose" test rather than the "dominant purpose" test although recognised that the balance of authorities are against him on that proposition).
Ms Boyd was asked in cross-examination whether briefs may sometimes be prepared by the Legal Branch without a request for advice and she accepted that would sometimes occur. Ultimately this line of questioning was of no relevance as it is clear on the evidence that both Documents 27 and 28 were prepared in response to a request for advice. Ms Boyd also accepted that sometimes the Legal Branch would provide legal advice and sometimes it might provide legal policy advice.
The evidence was that Ms Cameron was only ever employed in DPC in the capacity as a legal officer. While it is somewhat surprising that the Respondents have not provided the Tribunal with a copy of her practising certificate, I also find on the balance of probabilities that Ms Cameron held a practising certificate at the time of the relevant communication on the basis of the requirement that was in place in time in the Legal Branch that all officers employed in the branch maintain current practising certificates.
From my review of the document (and the email in response to which it was prepared) I am satisfied that Document 27 was prepared by Ms Cameron in her capacity as a lawyer and that the reference to Ms Cameron's title as being Principal Policy Officer was an error.
Legal officers in DPC are subject to strict obligations of confidentiality. They possess a lawyer-client relationship with their "clients" within the DPC of a type recognised by the authorities. They are required to give frank, honest and accurate advice such that I am satisfied Ms Cameron also had the requisite degree of independence.
From my review of the document and the email in response to which it was prepared I am also satisfied that Document 27 was produced for the dominant purpose of providing confidential legal (and not policy) advice to the Office of Premier.
In the circumstances I do not consider it was necessary for the Respondents to seek to call Ms Cameron as a witness (who is no longer in the DPC's employ). A review of the document and the document in response to which it was prepared objectively reveals its purpose and while Ms Cameron's evidence may have been relevant it would not have been conclusive in any event.

[40]

Cl 2(1)(d)

The Respondents submit that there were reasonable grounds for the claim that there was an overriding interest against disclosure of Document 28 pursuant to cl 2(1)(d) of Schedule 1 to the GIPA Act.
Document 28 is another briefing note dated 25 May 2015 prepared by Ms Cameron for the Premier. Ms Boyd's evidence is that the document records a decision made by Cabinet.
[NOT FOR PUBLICATION]
The Respondents submit that given Document 28 expressly addresses a decision made by Cabinet and reveals the specific recommendations that were made to Cabinet and recorded in its decision, the document falls squarely within cl 2(1)(d), that is it is 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.
The Applicant submits that as the NSW Legislative Council ordered the production of Document 28 under Standing Order 52, it necessarily rejected the contention that the document was Cabinet information because the Legislative Council cannot compel the production to it of Cabinet documents: Egan v Chadwick (1999) 46 NSWLR 563. The Applicant submits that the Tribunal should therefore not be satisfied that the document comprised Cabinet information.
I agree with the Respondents that the fact that a majority of the Legislative Council supported a motion requiring production of the document does not displace the enquiry the Tribunal must undertake in these proceedings.
If I consider that the document is a document meeting the description of cl 2(1)(d) then the conclusive presumption applies. The fact that the document may have been produced to the NSW Legislative Council does not displace that presumption. That presumption is only displaced in the circumstances set out in cl2 (2), (3) and (4) of Schedule 1 to the GIPA Act. None of those circumstances are present here. As a claim for privilege was made in respect of the document, the document was made available only to members of the Legislative Council and was not to be published or copied without an order of the House.
While members of the Legislative Council may have formed the view that the document was not a Cabinet document within the meaning of the common law definition as articulated in Egan v Chadwick, namely a document which directly or indirectly reveals the deliberations of Cabinet, that does not determine the matter and is not the question I need to determine. It is to be noted that the motion for production rejected the use of the definition of Cabinet documents used in the GIPA Act, which, if followed "may lead to a much broader class of documents being withheld from this House". Further, at the time of ordering its production, the Legislative Council does not appear to have had the document before it or evidence as to its contents.
I must turn my own mind to whether there were reasonable grounds for the claim that the document satisfies the description of a document in cl 2(1)(d) of the GIPA Act.
I am satisfied on the basis of Ms Boyd's evidence that Document 28 was prepared after Cabinet's deliberation or decision on a matter and that it would reveal or tend to reveal information concerning any of those deliberations or decisions. As such I agree there were reasonable grounds for the claim that the presumption against disclosure in cl 2(1)(d) applies to Document 28.

[41]

Legal professional privilege

The Respondents also submit that Document 28 is also wholly privileged and therefore subject to the conclusive presumption against disclosure in cl 5 of Schedule 1 to the GIPA Act.
While a copy of Document 28 has not been provided confidentially to the Tribunal, a copy of the request for advice which the brief was prepared in response to has been made available to the Tribunal confidentially. I am satisfied on the basis of Ms Boyd' evidence and my review of the email that the document was prepared in response to that Document 28 was prepared by Ms Cameron in her capacity as a lawyer, that Ms Cameron again had the requisite degree of independence and that the note was produced for the dominant purpose of providing confidential legal advice to the Office of Premier.
I am satisfied on the balance of probabilities that information in Document 28 would be privileged from production in legal proceedings on the ground of legal professional privilege and that the privilege has not been waived.
The Applicant did not press his claim that the crime, fraud or abuse of power exception might apply to Document 28 because the document clearly post-dated the passage of the Validation Bill through Parliament.
Accordingly, I am satisfied that the claim that the information in Document 28 which is the subject of a claim for legal professional privilege is also subject to a conclusive presumption against disclosure under cl 5 of Schedule 1 to the GIPA Act was also justified.
I do not know, however, on the evidence before me whether there may be some aspects of Document 28 which would not be privileged. If I had not separately found that Document 28 was Cabinet information, I would have been minded to remit the matter to the Respondent to consider whether there are aspects of Document 28 which are not privileged such that the Applicant might be provided with a redacted copy of that document. However, as I have found that Document 28 is Cabinet information, it is not open to me to do so.

[46]

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 - 1. a document that contains an official record of Cabinet, 2. 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), 3. 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), 4. 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, 5. 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, 6. 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). 1. Information contained in a document is not Cabinet information if - 1. public disclosure of the document has been approved by the Premier or Cabinet, or 2. 10 years have passed since the end of the calendar year in which the document came into existence. 1. Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1). 2. Information is not Cabinet information to the extent that it consists solely of factual material unless the information is contained in a document that, either entirely or in part, would - 1. reveal or tend to reveal information concerning any Cabinet decision or determination, or 2. reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. 1. In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet.

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