//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2005] AATA 898
Administrative Appeals Tribunal of Australia
2013-02-12
Original judgment source is linked above.
ydney [2008] NSWADT 213 Woodhouse v City of Sydney Council [2012] NSWADT 95 Category: Principal judgment Parties: Australians for Sustainable Development Inc (Applicant) Barangaroo Delivery Authority (First Respondent) Lend Lease Corporation Limited (Second Respondent) Lend Lease (Millers Point) Pty Ltd (Third Respondent) KPMG (Fourth Respondent) Representation: Counsel M Robinson SC with B Tronson (Applicant) J Lazarus (First Respondent) R Higgins (Second and Third Respondent) A Bell SC with S Keizer (Fourth Respondent) Norbert Lipton & Co (Applicant) Clayton Utz (First Respondent) Herbert Smith Freehills (Second and Third Respondent) File Number(s): 123123 123124 123125 Publication restriction: S75 Administrative Decisions Tribunal Act 1997
Introduction 1The applicant, Australians for Sustainable Development Inc (ASD), seeks review of three decisions of the first respondent, Barangaroo Delivery Authority (BDA), made under s 58 of the Government Information (Public Access) Act 2009 (GIPA Act). The decisions the subject of review relate to applications ASD made for access to information about the development of Barangaroo South, which is part of a major urban renewal project on 22 hectares of government owned prime harbour foreshore in Sydney CBD's western corridor. The information for which ASD sought access included valuations of the Barangaroo site, the final proponent tender schedules of Lend Lease Corporation Ltd and Lend Lease (Millers Point) Pty Ltd (together referred to as 'LL' in these reasons for decision) and Brookfield Multiplex Developments Pty Ltd (BM) and the KPMG evaluation report of these tender offers. 2BDA determined to grant ASD access to some of the information in these documents and to refuse to grant access to the remaining information on the grounds that there was an overriding public interest against the disclosure of the information: see subs 3(1), s 5 and subs 9(1) of the GIPA Act. The public interest grounds against disclosure relied on by BDA were those in cl 1 (Responsible and effective government) and cl 4 (Business interests of agencies and other persons) of the table to subs 14(2) of the GIPA Act. 3There is no dispute that the Tribunal has jurisdiction to hear and determine ASD's applications for review: see subs 38(1) of the Administrative Decision Tribunal Act 1997 (ADT Act) and ss 80 and 100 of the GIPA Act. 4On 17 December 2012, by consent, LL was joined as a party to the proceedings that are file no 123123 and 123124. 5Subsequently, on 31 January 2013, KPMG was joined as a party to the proceedings that is file no 123125. 6ASD's applications were heard on 12 February and 4, 5 and 6 March 2013. The hearing on 12 February was devoted to material (i.e. affidavits, documents and written submissions), the respondents, BDA, LL and KPMG, requested be placed before the Tribunal, in confidence, pursuant to subs 107(2) and (3) of the GIPA Act. 7The substantive applications were heard on 4, 5 and 6 February. During the course of the hearing, the witnesses of each respondent gave some additional oral evidence and were cross-examined. The oral evidence of each witness was heard, in part, in confidence, pursuant to subs 107(2) of the GIPA Act, in the absence of the public, the applicant and the applicant's legal representative. This evidence was also heard in the absence of LL and KPMG and their respective legal representatives where the witness giving evidence was not their witness. 8In regard to the evidence and material received in confidence, I also made an order, under subs 75(2) of the ADT Act, prohibiting the publication of that evidence and material, subject to any further orders the Tribunal may make. 9In accordance with the nondisclosure requirements of section 107 of the GIPA Act, in these reasons for decision, to the extent they contain information for which there is, or is claimed to be, an overriding public interest against disclosure, have been redacted and identified by the words 'not to be published'. However, BDA and its legal representatives are to be provided with a full copy of these reasons for decision. It is a matter for BDA to determine which portions of the redacted information should be provided to LL or KPMG. 10I have carefully considered all the material before the Tribunal, including the detailed written submissions of the parties. 11For the reasons set out below I have found that in regard to some of the information in dispute, BDA's decision to refuse access is not the correct and preferred decision. Accordingly, I have made orders setting aside BDA's decision in regard to that information. However, in regard to the remaining information I have made an order affirming BDA's decision. 12In summary, these reasons for decision are set out under the following headings and paragraphs: Information in dispute paragraphs [13] to [16] Background paragraphs [17] to [34] Relevant legislation and legal principles paragraphs [35] to [75] Evidence paragraphs [76] to [95] Public Interest considerations paragraphs [96] to [100] In favour of disclosure Land Valuations (a) & (b) paragraphs [101] to [117] BDA Final Phase RFDP paragraphs [118] to [173] Tender Documents (e) LL Schedule 3 (c) paragraphs [174] to [201] BM Schedule 3(d) paragraphs [202] to [205] Minutes of meetings (f) and (g) paragraphs [206] to [216] KPMG Evaluation Report (h) paragraphs [217] to [229] Conclusions and Orders paragraphs [230] to [232]
Information in dispute 13After ASD filed these applications for external review, BDA decided to release some further information. During the course of the hearing some further information was released and ASD did not press access to some of the information in dispute. 14The information remaining in dispute is listed below, by reference to the application file number and the document in which the information is contained. I have also used the document tab number and page number of each document as contained in Volume 2 of the Confidential Amended Non-Disclosure Documents adduced into evidence by BDA, under subs 107(3) of the GIPA Act. File no 123123 (a) and (b) Land Valuations Asset Valuation Report, by the Department of Lands, of the Barangaroo Development Site (the Site), dated 31 March 2009 (2011 Valuation Report) - page 20 and 28 (in part), letter, dated 1 September 2010, from the Land and Property Management Authority, to BDA with an up-dated valuation of the Site as at 30 June 2010 (2010 Updated Report) - page 38 (in part), letter, dated 30 March 2011, from the Land and Property Management Authority, to BDA with a further up-dated valuation of the at 30 June 2011 (2011 Updated Report) - page 47 (in part). File no 123124 (c) LL (Stage 1 RFDP) - Final Phase - Schedule 3 Financial Return - dated 9 August 2009 - pages 3-6 (in part), 7-12 (in full), 35 (heading), 37 - 41 (in part), 42-46 (in full), 47 (in part), 48(in full), 69 (in part), (d) BM - Final Phase RFDP - Returnable Schedule 3 - dated 9 August 2009 -pages (in part) 5, 6, 7, 9, 11, 18 - 26, 31 - 35, (e) BDA Final Phase RFDP - Addendum No. 2 - issued 23 October 2009 - pages (in part) 67, 107, BDA Stage 1 RFDP - Final Phase - Proponent Brief to BM - dated August 2009 - pages (in part) 116, 120. 121, 123 -126, BDA Stage 1 RFDP - Final Phase - Proponent Brief to LL - dated August 2009 - pages (in part) 140, 145-149 (f) Not in dispute (g) Minutes of meetings - 7 December 2009 (Evaluation Panel), 10 December 2009 (Evaluation Panel), 7 December 2009 (Executive Review Panel), 10 December 2009 (Executive Review Panel) - pages (in part) 1, 2, 3, 4, 5, 7 File no 123125 (h) KPMG Evaluation Report, dated December 2009 - access refused in full 15There is no dispute that the onus is on BDA to establish that its decision in regard to the disputed information is justified: see subs 105(1) of the GIPA Act. BM, LL and KPMG support the decision made by BDA in regard to the deletions concerning the information they prepared and provided to BDA. However, in some very minor respects, LL and KPMG, appear to press for additional deletions. In those circumstances, the onus rests on them to establish that there is an overriding public interest against disclosure of that information: see subs 105(2) of the GIPA Act. 16It should be noted that BM and LL have not had access to the KPMG Report, or the deletions in the Valuations. Nor has LL had access to the deletions in the BDA Final Proponent Brief to BM, or the deletions in the Schedule 3 Financial Return submitted by BM. Similarly, BM has not had access to the deleted information in the BDA Final Proponent Brief to LL, or the deletions in the Schedule 3 Financial Return submitted by LL.
Background 17The development of the Barangaroo foreshore site started, in about 2005, with a Government initiated urban design competition. At the time, the owner of the land was the Sydney Harbour Foreshore Authority (SHFA). In 2007, a Concept Plan for the development of Barangaroo was approved. The Plan involved the granting of 99 year development leasehold rights to provide a new commercial, retail and residential precinct at the southern end of the Barangaroo Site. This was known as Stage 1 and involved an area of 7.5 hectares and developer contributions to develop this area were expected to provide for public domain and other government costs. About half of the entire Barangaroo site was to be public domain, including the 6 hectare Headland Park at the northern end of the Barangaroo site at Millers Point. 18The Headland Park was Stage 3 of the Concept Plan. Stage 2 of that Plan was known as Barangaroo Central, which involved the development of a civic and cultural precinct. 19In April 2008, SHFA called for expressions of interest (EOI) in delivering Stage 1 of the Barangaroo Project. Eight EOIs were received and in September 2008, the Government announced a short-list of three Stage 1 proponents. The three short-listed proponents were: (a) BM, (b) a consortium comprised of Leighton Properties Pty Ltd, Mirvac Projects Pty Ltd and Macquarie Capital Group and (c) LL. These three proponents were then requested to submit a more detailed proposal (RFDP). 20On 30 March 2009, BDA was established, under the Barangaroo Delivery Authority Act 2009 (BDA Act). It is as a statutory corporation and a NSW Government agency. Under s 26 of that Act, ownership of the Barangaroo site was transferred to BDA. Section 14 of the BDA Act set out the general functions of BDA as follows: 14 Functions-generally (1) The Authority has the following functions: (a) to promote, procure, facilitate and manage the orderly and economic development and use of Barangaroo, including the provision and management of infrastructure, (b) to promote, procure, organise, manage, undertake, secure, provide and conduct cultural, educational, residential, commercial, transport, tourist and recreational activities and facilities at Barangaroo, (c) to develop and manage the Barangaroo Headland Park and public domain so as to encourage its use by the public and to regulate the use of those areas, (d) to facilitate and provide for appropriate commercial activities within the Barangaroo Headland Park and public domain that are consistent with their use for cultural, educational and recreational activities and the use and enjoyment of those areas by the public, (e) to promote development within Barangaroo that accords with best practice environmental and town planning standards, is environmentally sustainable and applies innovative environmental building and public domain design, (f) to liaise with Government agencies with respect to the co-ordination and provision of infrastructure associated with Barangaroo, (g) to undertake the delivery of infrastructure associated with Barangaroo or that relates to the principal functions of the Authority. (2) ... (3) The Authority is not limited to exercising its functions on or in relation to land within Barangaroo. (4) ... 21The remaining functions of BDA (including dealings in the land) are set out in ss 15 to 24 of the BDA Act. 22BDA is managed by, the Board of BDA, the Audit and Risk Management Committee, the CEO and the BDA Management. BDA also established a number of expert panels, including the Evaluation Panel and the Executive Review Panel. 23In August 2009, BDA issued a Stage 1, Final Phase RFDP, to LL and BM. This document has been released in full and contains a description of the final phase process and instructions on the nature of the information LL and BM were to include in their respective final offer. The information they were instructed to provide included a detailed Final Phase Schedule 3 Financial Return. 24In addition to the Final Phase RFDP, BDA issued each proponent with a more specific Final Phase Proponent RFDP, which addressed specific aspects of the initial proposal submitted by the proponent (including their initial financial returns and risk proposals) for which BDA sought additional information (i.e. the Proponent Briefs described in paragraph 14(e) above). 25On 23 October 2009, BDA issued Addendum 2 to its Final Phase RFDP, for Stage 1 (i.e. the first document described in paragraph 14(e) above). This document contains amendments to some of the paragraphs of the above Final Phase RFDP, draft itemised cost schedules for public works, remediation, energy, transport, waste and other matters together with a Risk Allocation Table. With the exception of a small deletion on page 107 (page 6 of Risk Allocation Table), the information in this document has been released. 26On 9 November 2009, LL and BM submitted, to BDA, their respective Stage 1, Final Phase RFDP (including their respective Schedule 3 Financial Return - as described in paragraph 14(c) and (d) above). These Schedule 3 Financial Returns set out, in detail, the financial returns of their respective offers. 27On receipt of the Stage 1, Final Phase RFDPs, BDA sought expert advice on the design and financial return and risk criteria of each bid. This included advice from KPMG, which was provided in December 2009 (i.e. the document described in paragraph 14(h) above). 28On 20 December 2009, the Government announced that LL had been selected as the preferred developer of Stage 1 of Barangaroo. Following this announcement, on 5 March 2010, BDA and LL executed a Project Development Agreement (PDA). In accordance with its obligations under the GIPA Act, a copy of the PDA (with deletions) was published on BDA's website (see s 6 (open access information), para 18(a) and ss 27 to 33). The redated sections of the PDA are those parts of the agreement, which I understand the parties have determined to be 'commercial-in-confidence' or confidential information that was not required to be disclosed: see subs 32(1) of the GIPA Act. 29By agreement, the PDA has been amended 5 times since its execution (four times in 2010 and once June 2012). These amendments have also been published on BDA's website in accordance with its abovementioned obligations under the GIPA Act. 30On 11 November 2010, ASD, an alliance of concerned local government, community, environment, and business groups seeking reform of NSW planning laws to benefit and improve local communities was incorporated. 31LL commenced construction in October 2011 and work is ongoing. The work is anticipated to continue up until 2018. During this time there is an ongoing relationship between BDA and LL under the terms of the PDA. 32The design and development tender stages for Stage 2 (Barangaroo Central) were commenced, in August 2012, with BDA issuing a request for proposals (RFP). These were to be submitted by the end of September 2012. At the time of hearing, no decisions had been made in regard to the RFPs that were received. Hence no project development agreement for Stage 2 had been executed at that time. 33However, at the time of hearing, contracts had been executed for the development of Stage 3 (Headland Park and North Cove) and work had commenced under these agreements. 34Completion of the entire redevelopment, of the Barangaroo site, is anticipated to be 2023.
Relevant legislation and legal principles 35There is general agreement on the relevant legislative provisions and the legal principles that apply thereto as set out below. 36The GIPA Act generally The object of the GIPA Act is to open government information to the public by giving members of the public an enforceable right to access and only restricting access where there is an overriding public interest against disclosure: see subs 3(1), s 5 and subs 9(1) of the GIPA Act.
Open access information 37S 6 makes provision for the 'mandatory proactive release' of 'open access information' unless there is an overriding public interest against disclosure of that information. Part 3 of the GIPA Act deals with 'open access information'. Section 18 describes what constitutes 'open access information' for the purpose of s 6. Included in this description is an agency's register of 'government contracts': see para 18 (e). 38The term 'government contract' is defined in cl 1 of Schedule 4 of the GIPA Act to mean the following: government contract means any of the following contracts between an agency and a private sector entity: (a) a contract under which a party agrees to undertake a specific project (such as a construction, infrastructure or property development project), (b) a contract under which a party agrees to provide specific goods or services (such as information technology services), other than a contract of employment, (c) a contract under which a party agrees to transfer real property to another party to the contract, (d) a lease of real property 39Division 5 of Part 3 deals with Government contracts with the private sector. There is no dispute that the PDA is a government contract falling within the meaning of the provisions in Division 3. S 27 in this Division requires every government agency to keep a register of contracts, to which it is a party, that has (or is likely to have) a value of $150,000 or more. S 29 prescribes the basic information that is to be registered in the register of contracts, as follows: 29 Information to be entered in register-class 1 contracts The following information about a class 1 contract is to be entered in the government contracts register: (a) the name and business address of the contractor, (b) particulars of any related body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) in respect of the contractor, or any other private sector entity in which the contractor has an interest, that will be involved in carrying out any of the contractor's obligations under the contract or will receive a benefit under the contract, (c) the date on which the contract became effective and the duration of the contract, (d) particulars of the project to be undertaken, the goods or services to be provided or the real property to be leased or transferred under the contract, (e) the estimated amount payable to the contractor under the contract, (f) a description of any provisions under which the amount payable to the contractor may be varied, (g) a description of any provisions with respect to the renegotiation of the contract, (h) in the case of a contract arising from a tendering process, the method of tendering and a summary of the criteria against which the various tenders were assessed, (i) a description of any provisions under which it is agreed that the contractor is to receive payment for providing operational or maintenance services. 40Where the contract is as a result of a tender process, as in the case of Barangaroo South, s 30 requires additional information about the contract to be entered into the register. 30 Additional information for class 2 contracts (1) ... (2) The additional information required to be entered in the register for class 2 contracts is as follows: (a) particulars of future transfers of significant assets to the State at zero, or nominal, cost to the State, including the date of their proposed transfer, (b) particulars of future transfers of significant assets to the contractor, including the date of their proposed transfer, (c) the results of any cost-benefit analysis of the contract conducted by the agency, (d) the components and quantum of the public sector comparator if used, (e) if relevant, a summary of information used in the contractor's full base case financial model (for example, the pricing formula for tolls or usage charges), (f) if relevant, particulars of how risk, during the construction and operational phases of a contract to undertake a specific project (such as construction, infrastructure or property development), is to be apportioned between the parties, quantified (where practicable) in net present-value terms and specifying the major assumptions involved, (g) particulars as to any significant guarantees or undertakings between the parties, including any guarantees or undertakings with respect to loan agreements entered into or proposed to be entered into, (h) particulars of any other key elements of the contract. 41Where that contract has a value of $5million or more, s 31 requires the agency to place a copy of the contract on the register. 42The PDA, between BDA and LL, falls into the latter category. However, s 32 provides that 'confidential information' does not need to be included in the register. That section is in the following terms: 32 Confidential information not required to be included in register (1) A requirement of this Division to include information or a copy of a contract in the government contracts register does not require the inclusion of: (a) the commercial-in-confidence provisions of a contract, or (b) details of any unsuccessful tender, or (c) any matter that could reasonably be expected to affect public safety or security, or (d) a copy of a contract, a provision of a contract or any other information in relation to a contract that is of such a nature that its inclusion in a record would result in there being an overriding public interest against disclosure of the record. (2) If an agency does not include a copy of a contract in the register, or includes only some of the provisions of a contract in the register, because of this section, the agency must include in the register: (a) the reasons why the contract or those provisions have not been included in the register, and (b) a statement as to whether it is intended that the contract or those provisions will be included in the register at a later date and, if so, when it is likely that they will be included, and (c) if some but not all of the provisions of the contract have been included in the register, a general description of the types of provisions that have not been included. 43The Note at the end of this Division states 'Any exception under this Division from the requirement to include information about or a copy of a contract on a government contracts register does not of itself constitute grounds for refusing an access application'. Public Interest Test 44The test to be applied in determining whether there is an overriding public interest against disclosure is set out in s 13. That test is in the following terms: 13 Public interest test There is an overriding public interest against disclosure of 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. 45Subsection 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include: Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 46The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act. 47Subsection 14(1) provides for certain government information to be conclusively presumed to give rise to an overriding public interest consideration against disclosure. That information is set out in Schedule 1 of the GIPA Act. Where government information falls within this description, the public interest test in s 13 is satisfied without further inquiry. BDA, LL, nor KPMG have asserted that any of the grounds in Schedule 1 apply. 48The only other public interest considerations against disclosure are those set out in the table to subs 14(2). These are not conclusively presumed to give rise to an overriding public interest against disclosure. For the purpose of this application, the relevant public interest considerations against disclosure are as follows: 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) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (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) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) ... 4 Business interests of agencies and other persons 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) ..., (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, (e) ... 49The application of the public interest test and the public interest considerations against disclosure are discussed in more detail below. 50Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section provides as follows: 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) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 51Where the information for which access is sought concerns a person's business, commercial, professional or financial interests, section 54 of the GIPA Act requires an agency to consult with that person before providing access where (a) the person may reasonably be expected to have concerns about the disclosure of the information, and (b) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. It is as a result of BDA's consultation, under this section, that LL and KPMG have become a party. 52Provision is made for personal factors of an applicant to be taken into account in determining where the public interest lies: see s 55 of the GIPA Act. Personal factors are described in subs 55(1) to include an applicant's motive for making the access application. 53Application of the public interest test In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] and [25], the Appeal Panel noted the structured approach within the GIPA Act to the question of whether an agency has properly refused acess. In that regard the Appeal Panel said the following: 24 Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25 The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 54That is, on external review, where the conclusive presumption of an overriding public interest against disclosure in subs 14(1) does not apply, the Tribunal (as the agency before it) must first be satisfied that one or more of the public interest considerations against disclosure (which are closed) in the table to subs 14(2) applies to the information in issue. If so satisfied, the Tribunal must then weigh these factors against the public interest considerations in favour of disclosure, which are not closed, to ascertain where the balance lies. In doing so, the Tribunal (as the agency before it), must have regard to the general public interest in favour of disclosure in subs 12(1) and the requirements of s 15 (i.e. exercise its functions to promote the objects of the Act and disregard matters such as a disclosure of information might embarrass the Government, or be misunderstood). 55Ultimately, in determining where the balance lies between the competing interests, this 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation': see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70]. 56The public interest considerations against disclosure - generally As set out above, the public interest considerations in cl 1 and cl 4 of the table to subs 14(2) of the GIPA Act are predicated with the words - 'could reasonably be expected to' have the prescribed effect as set out in one or more of the paragraphs in each clause. It is accepted that these words are to be given their ordinary meaning and 'require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous': see Attorney-General's Department v Cockcroft (1986) 10 FCR180, 64 ALR, per Bowen CJ and Beaumont J, at 190 and 106, as applied in McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61], Re Lobo and Department of Immigration and Citizenship 92011) 124 ALD 238, at [62] to [64] and [74], Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 at [146], Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [56] and [57] and Woodhouse v City of Sydney Council [2012] NSWADT 95 at [32] to [34]. 57The abovementioned remarks of Bowen CJ and Beaumont J, in Cockcroft (supra), have been widely accepted. However, it is instructive to repeat their observations in full: [In] our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs (1985) 159 CLR 550 ; 62 ALR 321 per Gibbs CJ and Mason J). The majority of the Tribunal thought that an assessment of what was more probable than than not was called for. As Woodward J has pointed out, there are difficulties in this approach for the legislature has chosen not to introduce the notion of a "probable" result (cf Ex parte White; In re White (1985) 14 QBD 600). It is also unnecessary to consider whether an "even chance" or something of that kind is needed. It is preferable to confine oneself to the language of the provision itself and to attempt to form an opinion, on the evidence, as to what can reasonably be expected to happen if disclosure occurs. In our opinion, in departing from the terms of s 43(1)(c)(ii) and requiring the applicants to establish a case on the balance of probabilities, the majority of the Tribunal fell into error in their construction of the provision. [bold emphasis added] 58In the same decision, at p 196, Sheppard J made the following remark: ... stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information. 59Although Cockcroft (supra), concerned the meaning of the term in the context of s 43(1)(c)(ii) of the Commonwealth Freedom of Information Act 1982, (FOI Act (Cth)), as I have indicated above, it has been accepted that the term, as used in other exemptions in that Act, the exemptions in Schedule 1 of the former NSW Freedom of Information Act 1989 (FOI Act (repealed)) and in the table to subs 14(2) of the GIPA Act, have the same meaning. 60Cockcroft's (supra) case was considered and applied in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111, 108 ALR 163. At 176, after reciting the abovementioned paragraphs from the decision in Cockcroft, the Court (per Davies, Wilcox and Einfeld JJ) said: Their Honours did not suggest, as was submitted by Mr Bayne, that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the specified consequence would occur. Their Honours specifically rejected that approach, saying that the words "could reasonably be expected" meant what they said. The practical application of their Honours' view will not necessarily lead to a result different from that proposed by Sheppard J. In the application of s 43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable. ... ... the question under s 43(1)(b) is not whether there is a reasonable basis for a claim for exemption but whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed. These two questions are different. The decision-maker is concerned, not with the reasonableness of the claimant's behaviour, but with the effect of disclosure. ... 61In my view, the approach adopted by their Honours above, remains the correct approach in determining whether the disclosure of information 'could reasonably be expected to' have one or more of the effects as prescribed in the clauses in the table to subs 14(2) of the GIPA Act. That is, the inquiry is not whether the occurrence of the prescribed effect is likely, possible or probable. The inquiry is whether the expectation of the claimed effect is reasonably based (cf the approach in Nature Conservation Council (supra), at [179]). 62The public interest considerations in favour of disclosure examples in subs 12(2), I note, are also predicated with the words 'could reasonably be expected' to 'promote', 'enhance', inform' and 'insure' public discussion, Government accountability etc. The term 'could reasonably be expected' in this context must have the same meaning. 63Clause 1(d) prejudice supply of confidential information In Camilleri (supra) at [27] to [33], the Appeal Panel considered the operation of the public interest consideration against disclosure in cl 1(d) of the table of subs 14(2) of the GIPA Act and said the following: 27 The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). ... 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. ... 30 ... 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, ... 32 ... 33 In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. ... 64As outlined above, for the cl 1(d) public interest consideration to apply, the information in issue must not only be 'confidential information', it must also be information that facilitates the effective exercise of that agency's functions. 65The Tribunal has accepted that the word 'prejudice', in the context of the public interest considerations against disclosure, is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage': see Hurst (supra) at [60], McLennan v University of New England [2013] NSWADT 113 at [38] and Sobh v Victoria Police (1993) 1 VR 41. 66Clause 1(e) reveal an opinion, advice, or recommendation so as to prejudice a deliberative process of government or an agency This public interest consideration against disclosure is only relied by BDA, in respect of the disclosure of the information in the KPMG Report. 67In order for this public interest consideration against disclosure to apply, it is necessary to establish a connection between the particular opinion, advice or recommendation and the relevant deliberative process of the agency: see Van der Wall v University of Sydney [2008] NSWADT 213 at [36] and Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61]. 68Clause 1(g) disclose information provided to the agency in confidence It is well established that even where information has not expressly been provided to an agency in confidence, this can be inferred from the circumstances in which it was provided. In these applications, I accept that the disputed information, to the extent it is information provided in the course of the tender process by LL, BM or KPMG, was provided in confidence. 69Clause 4(b) reveal commercial-in-confidence provisions of a government contract The word 'reveal' is defined in cl 1 of Schedule 4 of the GIPA Act as follows: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). 70For the purpose of Government contracts, 'confidential information' is defined in s 32 of the GIPA Act to include the 'commercial-in-confidence provisions' of the contract. These are defined in cl 1 of Schedule 4 of the GIPA Act as follows: commercial-in-confidence provisions of a contract means any provisions of the contract that disclose: (a) the contractor's financing arrangements, or (b) the contractor's cost structure or profit margins, or (c) the contractor's full base case financial model, or (d) any intellectual property in which the contractor has an interest, or (e) any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future. 71To the extent the disputed deleted information is also information deleted from the copy of the PDA on BDA's website, BDA and LL argue that this information is a 'commercial-in-confidence provision' in that Agreement and hence the information, as it appears in the documents in these proceedings should be treated as such. In my view, consideration needs to be given to each deletion as to whether a disclosure of that information could reasonably be expected to have the prescribed effect, as asserted by BDA and LL, and if it does whether, on balance it outweighs the public interest in favour of disclosure. That is, the fact that the parties have determined that a provision in the PDA falls within the abovementioned description of a 'commercial-in-confidence provision' in the Agreement is not conclusive and even if it does, the public interest test must still be applied to see where the balance lies. 72Clause 4(c) diminish the competitive commercial value of the information In McKinnon v Blacktown City Council [2012] NSWADT 44 at [79] and [80], the Tribunal noted that the words 'commercial value' were modified by the adjective 'competitive' and after considering the ordinary meaning of that word, said: "Competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services. 73In Nature Conservation Council (supra), at [160], the Tribunal held that the descriptor 'competitive' implied that the information would need to provide the person with a competitive edge. 74In McKinnon (supra), at [78], the Tribunal accepted the following meanings of the term 'commercial value':
The Evidence 76ASD's evidence The applicant relied on the affidavit affirmed, on 22 October 2012, by its Vice-President, John McInerney. Mr McInerney was not required for cross-examination at the hearing. In his affidavit, Mr McInerney explained the purpose for which ASD had sought access to the information, contained in the documents the subject of ASD's access applications. In essence, he said, access had been sought in the public interest so that the community could know: (a) on what terms the Government was disposing of prime harbour side public land to a private developer, and (b) whether or not the Government was obtaining fair value for that land. 77Mr McInerney also addressed a number of matters for which ASD pressed access. These included: the cost to be expended by LL in respect of public domain works and infrastructure, the fixed payment amounts by LL, the non- fixed amounts (i.e. the value sharing amounts), the overall financial value and other benefits of the final proposals of LL and BM and the reasons why LL's proposal was preferred. 78BDA's evidence BDA relied on the affidavits sworn, by its Chief Financial Officer, Peter Colin Roberts (Mr Roberts), on 17 September 2012 and 19 November 2012. 79In his affidavit Mr Roberts explained the various features of the PDA between BDA and LL. He explained the contributions LL was to pay to BDA, over the course of the project, as follows: (i) [LL] would pay a Development Rights Fee to [BDA]: A in a series of fixed payments, payable in annual instalments until 2018. The amount of these fixed payments are based on the developable gross floor area. Accordingly, the timing and value of these payments may be subject to adjustments based on variations of the developable gross floor area and lease commencement dates for various buildings, and B by way of value sharing payments, being payable immediately prior to the lease commencement date for each premises if the final fixed payment has been paid or is due and payable. Each value sharing payment will be an amount equal to 50% of the land value of that premises, less the outstanding balance of any total fixed amount (if any), and (ii) [LL] must provide various developer contributions to [BDA], being contributions equal to certain percentages of the development cost amount incurred' by LL upon completion of certain work portions. 80Mr Roberts also explained, for each deletion, the basis on which BDA asserts the public interest consideration in cl 1(d), (g) or (e) and/or cl 4(b), (c) or (d) of the table to subs 14(2) of the GIPA Act applies. I have dealt with these below in my consideration of the various deletions. 81Included in the exhibits to Mr Robert's affidavit was: (a) a letter, dated 14 September 2012, from Andrew Thomas (Mr Thomas), Legal Counsel of BM, to the legal representative of BDA, and (b) a copy of a Performance Audit, by the NSW Auditor-General, on 'Government expenditure and transport planning in relation to implementing Barangaroo'. The report is dated June 2011. 82In his letter, Mr Thomas set out a description of the information BM had agreed could be released. He went on to say that BM maintained its objection to the disclosure of the disputed information in BDA's Final Phase Proponent Brief to BM and the disputed information in BM's Final Phase - Schedule 3 Financial Return. In particular, BM objected to the disclosure of the deleted the dollar figures in the financial costings, the percentage figures for the Project Internal Rate of Return (IRR), and the identity of its proposed company guarantor. Mr Thomas said that these three areas represented the specific elements on which BM had developed its financial structure of its proposal offer to BDA. He said, a disclosure of that information would prejudice BM's business and financial interests by placing it at a competitive disadvantage 'in current and future public private partnership (PPP) and other major project tender as well as in future negotiations of private sector deals'. 83Mr Thomas said, competitive tender processes were now standard government practice when procuring participants for government infrastructure projects, hence, a disclosure of the manner in which BM had structured its Barangaroo bid, would enable competitors to moderate their offers in future deals so as to gain a competitive edge. In this regard, he noted, within the major infrastructure project sphere, BM and LL were competitors. Mr Thomas said a disclosure of the deleted information could also prejudice BM's negotiating position in future contractual negotiations in the private sector as 'the amounts BM was prepared to offer on certain aspects of the Barangaroo Project could be used as a negotiation tool by the other party to the contract.' 84The Auditor-General's Report concerned a performance audit of Government expenditure and transport planning in relation to implementing Barangaroo. In that Report, the Auditor-General made a number of recommendations, including the ongoing disclosure of financial information that was being withheld for commercial reasons. BDA's ongoing obligation under the GIPA Act was also noted. In his conclusions, the Auditor-General concluded that there had been extensive planning in support of the government financial forecast and transport solutions for Barangaroo. The Auditor-General went on to identify three key risks that could limit the Barangaroo success. These were: -developer contributions to government being different to those forecast -the cost of public domain construction by government being greater than estimated -planned, and necessary, transport solutions not started and completed on time by government. 85LL's evidence LL relied on the affidavit sworn, on 10 September 2012 and 14 November 2012, by its Group Head of Development, David Hutton (Mr Hutton). 86In his evidence, Mr Hutton gave an overview of LL's operations worldwide and the complexities of securing business through competitive tenders, including the competitive tender for Barangaroo South. Mr Hutton explained that, since 2008, he has been closely involved in the LL tender bid and the management of the Barangaroo South development. He gave a general outline of what was involved, in terms of time, personnel and costs, for LL to structure its tender proposal. He explained that this process was extremely complex, time consuming and expensive for LL. He said it required 'a substantial intellectual and capital investment in order to produce a proposal that is both robust and attractive to all parties.' 87Hence, to the extent the disputed information was LL information, Mr Hutton said the information was confidential and highly commercially sensitive and valuable property belonging to LL. He said that a disclosure of the LL information could significantly damage and diminish the competitive commercial value of that information to LL. A disclosure, he said, would also prejudice the business, commercial and financial interests of LL, and to some extent third parties, including the NSW Government and investors in the project. 88Mr Hutton said LL had already given considerable thought to those aspects of the PDA, which could be publicly disclosed and those, which were commercial-in-confidence and could not be disclosed. 89Mr Hutton described LL's key concerns about value and prejudice as follows: 36. My primary concerns about the impact that disclosure of the [LL] information would have on the competitive commercial value of the information and on [LL's] legitimate interests can be broken down into: (a) damage that I expect would occur across [LL's] business activities, being damage to [LL's] capital and intellectual investment in respect of its approach to tendering, with consequential damage to [LL's] competitive position in future tenders; and (b) damage that I would expect to occur in respect of the Project specifically, being damage to [LL's] ability to create value at the Project, including by providing prospective capital investors, tenants, sub-contractors, other competing landlords, unions and other industry participants with information about [LL's] contractual and financial exposure, which they could then exploit to [LL's] and the BDA's detriment in commercial negotiations. 90Mr Hutton went on to describe these concerns in more detail, which I have considered in the context of the information in issue. Mr Hutton also expressed concern about media comments ASD had made about the project. These, he said misrepresented the extent of and complexity of the project and he was concerned that if further information were to be released, then 'far from promoting public understanding about the deal, it will lead to further inaccurate reports and misinformation'. I understand Mr Hutton to have made this comment on the basis of the complexity of the LL information, which if released would be difficult to understand, especially by members of the general public. As I have explained above, pursuant to para 15(d) of the GIPA Act, concerns about the disputed information, if disclosed, being misunderstood, or misinterpreted is not a relevant factor to be taken into account in determining these applications. At the same time, if the information is to be disclosed, it must be disclosed unconditionally. 91KPMG's evidence KPMG relied on the affidavit sworn, on 20 February 2013, by Graham Brooke (Mr Brooke), a partner of that firm. 92In his evidence, Mr Brooke explained he is the partner in charge of KPMG's Infrastructure & Projects Group. He said he has been a specialist in the commercial and financial aspects of infrastructure projects for 21 years and he supervised the KPMG team that undertook, at the request of BDA, the financial evaluation of the Barangaroo Project Stage 1. 93Mr Brooke explained that on or about March 2009, KPMG, under his supervision, prepared a detailed proposal to provide financial advisory services, to SHFA, with respect to Barangaroo. He said KPMG was appointed to provide such services in late March 2009 and in doing so gave a confidentiality undertaking in regard to the information it prepared and was provided by SHFA and then BDA. Mr Brooke went on to explain the measures taken by KPMG in ensuring that the information remained confidential, including ensuring that no one other than those allocated to work on this task within KPMG had access to the information provided by the SHFA and BDA, or the work undertaken by the KPMG team on behalf of SHFA and BDA. 94Mr Brooke explained that the KPMG Infrastructure and Projects Group provide its services in a competitive market. He said, to his knowledge, KPMG's Infrastructure and Projects Group is unique within Australia in that it combines finance, infrastructure and property experts in a single team. He said the knowledge, experience and expertise of this group, in the context of specific projects, has significant commercial value to KPMG. 95Mr Brooke said the Barangaroo development was an unusual type of government infrastructure project as it largely involved property development, which extended over a long period of time and during which there will be an ongoing relationship between Government and the developer. He said due to the unusual nature of the Barangaroo development and the differences between the proponents' proposals there were no pre-existing or commonly used approach or template for evaluating these proposals. Hence, he and Mr Miller (also of KPMG) developed what they considered to be the most appropriate methodologies for addressing the issue. This, he said, was based on their respective experience, expertise and judgment. These methodologies, he said, were disclosed within the Report. A disclosure of the Report to a competitor firm, he said, could enable the competitor firm to ascertain the methodologies developed by KPMG and then utilise these to their own advantage in future projects and thereby diminish or destroy the commercial value of them to KPMG. Mr Brooke listed a number of other ways in which a disclosure of the information in the Report could prejudice the commercial value of the methodologies developed by KPMG for the Barangaroo Project and KPMG's approach more generally. However, in my view, these prejudices were essentially another form of saying the same thing.
Public interest considerations in favour of disclosure 96Although the public interest consideration in favour of disclosure must be considered in the context of the information in dispute, in these applications, given the nature of the documents containing the disputed information, the public interest consideration in favour of disclosure is common to almost all the information in dispute. The weight to be given to that public interest will of course differ depending on the information in question. 97In its decision, BDA identified the following public interest considerations in favour of disclosure: (a)promotion of open discussion on the Barangaroo project, (b)enhancing Governmental accountability, (c)increasing the general public's understanding of the financial arrangements between the BDA and LL, (d)increasing transparency not only in relation to financial and non-financial value of the transaction to the BDA and also in relation to decision making processes associated with the procurement arrangements for the project. 98LL adopted these public interest considerations in favour of disclosure in its submissions. 99In its written submission, KPMG focused on the purpose for which ASD sought access to the information, namely 'to inform the public of what factors BDA considered or ignored in deciding how and under what terms the NSW Government disposed of prime harbour side land to a private developer.' In my view, while the purpose for which the access applicant seeks access, is a relevant factor in determining where the balance lies, it does not mean that this purpose limits the extent of the public interest consideration in favour of disclosure. 100In its written submissions, ASD identified a number of public interest considerations in favour of disclosure. While they are in more specific terms to those identified by BDA, they essentially fall within those listed above. To the extent relevant to the information in dispute, the public interest considerations in favour of disclosure, as identified by ASD, can be summerised as follows: (e)the general public interest in favour of disclosure in subs 12(1) of the GIPA Act, (f)disclosure of the information could reasonably be expected to promote open discussions of public affairs, namely the development of public owned land, (g)disclosure of the information could reasonably be expected to enhance Government accountability as to the risks and benefits to the Government as a result of the LL tender, (h)disclosure of the information could reasonably be expected to enhance Government accountability on an issue of public importance, namely whether the Government obtained, or would obtain fair value for prime harbourside public land to a private developer, (i)disclosure of the information could reasonably be expected to inform the public about the operations of agencies, including what steps were taken by BDA to ensure that the Government obtained, or would obtain fair value for the sale of prime public land, and (j)disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds, in particular what costs are to be expended in developing Barangaroo and whether those costs will be met by LL's payments to Government.
(a) & (b) Land Valuations 101The information in the Valuation Reports has been disclosed subject to the following deletions:
(e) BDA Final Phase RFDP Tender Documents 118A description of the deleted information in these BDA Final Phase RFDP documents is as follows:
(c) LL Final Phase - Schedule 3 Financial Return 174During the course of the hearing ASD did not press access to the information in the detailed Cost Plans, at pages 16 to 33 and 50 to 67, of LL's Schedule 3, or the three CD Roms that accompanied the Schedule. Nor did it press access to the deleted information concerning specific liquidated damages at para 3(b) on pages 6 to 7 and 40 to 41, or the information on pages 13, 14, 47 and 48. Accordingly, I have not dealt with these any further. 175The only information remaining in dispute, are the deletions on page 3 to 12 (inclusive) and page 37 to 46 (inclusive). 176LL's Schedule 3 Financial Return is made up of two separate financial offers: a 'Preferred Scheme Financial Offer' and a 'Base Scheme Financial Model'. What differentiates the offers is the developable 'Ground Floor Area' (GFA), with the 'Preferred Scheme Financial Offer' having a GFA of 492.540 m2 and the 'Base Scheme Financial Model' having a GFA of 430,275 m2. Nevertheless, the essence of the information (including the deleted information) in each offer is the same as is the presentation of that information. 177Para 1 of each offer contains an overall summary of both offers and the total benefits to BDA under each offer. The first deletions are at para 1(b) (page 3 and 37), where the total dollar amounts for 'fixed payments', 'value payments (projected)', the estimated costs of infrastructure, public domain and remediation works and the total consideration have been deleted for each Design Scheme. 178Para 2 (pages 3 to 6 and pages 37 to 40) sets out a description of how LL's offer of 'fixed payments' and 'value payments' are to be calculated. A considerable amount of this information has been deleted, including the annual dollar amounts of 'fixed payments', from 31 March 2012 to 31 March 2013 (at pages 4 and 38). 179Pages 8 to 12 and pages 42 to 45, contain 'Worked examples of the Fixed and Value Payments' to BDA, which are stated to have been 'based on hypothetical amounts and stages for simplicity'. 180In his evidence, Mr Hutton said that the fixed payment amounts (including accelerated payments) and value payment amounts were an integral part of LL's efforts in conceptualising and structuring its proposal so that it would be distinguishable for the purpose of the Barangaroo bid and possibly future competitive tender processes. Hence, a disclosure of this information, he said, would equip competitors with knowledge of how LL approaches its financial and risk considerations in the context of a major tender. As a consequence, he asserted, a disclosure of the information would diminish LL's commercial value in that information. 181Mr Hutton and Mr Roberts also said that the deleted information, to the extent it was contained in the PDA, but not published, meant that a disclosure of this information would reveal 'a commercial-in-confidence provision' of that Agreement. Reference was made to the deleted annual fixed payment amounts in cl 4.2 and 4.3 of the PDA, which are a reflection of the deletions in par 2 of LL's Schedule 3 Financial Return. These deleted amounts Mr Roberts said, would reveal LL's cost structure. He went on to explain that these fixed amounts were, however, disclosed 'as and when payments are made'. 182BDA contends that a disclosure of the deleted information falls within the public interest considerations against disclosure in cl 1(d), 1(g), 4(b) and 4(d) of the table in subs 14(2) of the GIPA Act. LL also contends that a disclosure of the deleted information falls within cl 4(b) and 4(d). It also relies on cl 4(c). For the reasons set out below, I am not satisfied that LL has established that the public interest consideration against disclosure in cl 4(c) of the table in subs 14(2) of the GIPA Act applies. 183For the reasons already stated, I accept that the deleted information was provided, by LL, in confidence, to BDA, in the final stages of the competitive tender process for the Barangaroo South project. Accordingly, I am satisfied that BDA has established that a disclosure of the deleted information falls within cl 1(d) and 1(g) of the table in subs 14(2) of the GIPA Act. 184With the exception of the deletions in para 2(e)(2), under the heading 'Fixed Payments', and the last sentence in para 2(a), under the heading 'Value Payments', I am satisfied, on the basis of the evidence of Mr Hutton and Mr Roberts and the content of the information, that a disclosure of the deleted information could reasonably be expected to prejudice LL's business, commercial and financial affairs. In my view, the exceptions do no more than explain what is apparent from the information already disclosed. In this regard, I note that the essence of the deletion in para 2(e)(2) has in effect been disclosed in the Auditor-General's Report. 185I am also satisfied that a disclosure of the deleted information in para 2 (e)(1), under the heading 'Fixed Payments', and para 2(d) and (e), under the heading 'Value Payments', is information of commercial value to LL and BDA and a disclosure of that information could reasonably be expected to diminish the competitive value of that information. In these deletions, LL describes in more detail the methodology used to calculate the accelerated fixed payments and value payments and LL's reasoning behind the manner in which it had structured its offer. 186In regard to the information, at para 1(b), 2(a) and 2(c), on pages 3, 4, 37 and 38, concerning the dollar amounts of fixed payments, the value payments and the estimated costs of infrastructure, it was the evidence of Mr Roberts and Mr Hutton that a disclosure of these dollar amounts could reasonably be expected to disclose LL's cost structure as set out in the PDA and also its profit margin (i.e. an alleged disclosure of a 'commercial-in-confidence provision in the PDA). 187In my view, having regard to the terms of the relevant provisions of the PDA, this evidence of Mr Roberts and Mr Hutton is not altogether an accurate assessment of these payments. I accept that the total dollar amount for infrastructure etc. is a cost to LL and a disclosure of that information could reasonably be expected to prejudice LL and BDA's legitimate business, commercial and financial interests. However, I do not accept that this total dollar amount can be described as LL's profit margin. Nor do I accept that the total dollar amounts for the fixed payments and the value payments can be described as LL's cost structure or profit margin. 188As Mr Roberts explained, the fixed payments (including accelerated fixed payments) and value payments are a component of the Development Rights Fee payable, by LL, to BDA during the course of the Project. These I note are included in cl 4 of the PDA. Cl 4.1 states that LL 'agrees to pay the Development Rights Fee', to BDA, in accordance with cl 4.2 'as consideration for the right granted' to LL 'to undertake the Project' in accordance with the deed'. The right granted to LL, includes LL being granted, by BDA, a 99 year lease in respect of certain portions of the land. Accordingly, while the amounts payable in the form of the Development Rights Fee, is a cost to LL, it is in effect the consideration, or part thereof, LL is to pay BDA for the interest in the land it is to receive under the Agreement. Furthermore, as I have pointed out, this is how it is described in the PDA. 189Cl 4.2 states that the 'Development Rights Fee comprises': (a) the Total Fixed Payment Amount (subject to cl 4.3 and 4.4) in the instalment amounts set out in the table of that cl and subject to any extension of time to which LL is entitled pursuant to cl 25, and (b) an amount equal to the Value Sharing Payment for each Premises payable to BDA under cl 4.5 immediately prior to the Lease commencement Date for the Lease of those Premises. 190The amounts in the table to cl 4.2 of the PDA have been deleted, other than the first two entries (i.e. the fixed payment amount at the commencement of the PDA and that paid on 31 March 2011. Cl 4.3 of the PDA describes the circumstances in which 'accelerated fixed payment(s)' arise and the basis on which the accelerated fixed payment is calculated (i.e the fixed payment amounts and land value of premises) and its effect (if any) on the fixed payment amount. The basis on which these payments are calculated is broadly described. However, the specific methodology as how land is to be valued has not been disclosed. 191Cl 4.4 of the PDA makes provision for the adjustment of the total fixed payment amount. In cl 4.4(a) it is acknowledged that, at the commencement date, the total fixed payment amount is based on a developable GFA of 430,275 m2. The clause then goes on to set out the manner in which the fixed payment amount is to be adjusted in the event approval is given for an increase in the developable GFA. Cl 4.4(d) sets out the total fixed payment amounts that will be payable if the developable GFA is increased to 492,540 m2. Again the amounts in the table to that cl have been deleted, except for the first two payments. The information in this table and the table set out in cl 42 of the PDA are the same as those set out on pages 4 and 38 of LL's Schedule 3 Financial Return. 192In his Report, The Auditor-General described the fixed payment amounts as providing 'government with regular guaranteed revenue.' He went to explain that these payments can be accelerated on the earlier completion of buildings but are not to exceed the agreed total amount. He also noted that these payments will increase 'to the extent that the increase in gross floor area is approved and taken up' by LL. 193The 'value sharing' payment is defined in cl 4.5 to mean: 'If immediately prior to a Lease commencement Date (other than the Lease Commencement Date referrable to any Works Portion comprising Barangaroo Works), the final instalment of the Total Fixed Payment Amount has been paid or is due to be payable, the Developer must pay to the Authority immediately prior to the Lease Commencement Date 50% of the Premises Land Value less the balance of the Total Fixed Payment Amount, if any.' 194Again, the specific methodology as to how land is to be valued has not been disclosed. 195In his Report, the Auditor-General noted that the 'use of value sharing payments is a common industry practice for large construction projects' as they provide 'an incentive for the developer to construct on time and maximise returns on the lease of buildings.' 196Accordingly, I am not satisfied that a disclosure of the dollar amounts of fixed payments and value sharing payments, at para 1(b), 2(a) and 2(c), on pages 3, 4, 37 and 38, could reasonably be expected to reveal a commercial-in-confidence provision of the PDA. However, as I have indicated, I am satisfied that the public interest considerations against disclosure in cl 1(d), 1(g) and 4(d) applies to this information. 197While I am satisfied that there are a number of public interest considerations against disclosure of the deleted information (other than the deletions in paragraph 2(e)(2), under the heading 'Fixed Payments', and the last sentence in 2(a), under the heading 'Value Payments'), this alone does not mean that the public interest against disclosure automatically, on balance, outweighs the public interest considerations in favour of disclosure. In my view, the balancing test must be applied to the various categories of the information in issue. 198In regard to the information, the disclosure of which could reasonably be expected to reveal information that is of competitive commercial value to LL and BDA, in my view, for the reasons I have given, this public interest consideration against disclosure should be given considerable weight. I accept that there is a general public interest in favour of disclosure and that a disclosure of this information could reasonably be expected to enhance Government accountability. However, in light of the commercial value of that information, which is of an ongoing relevance during the term of the Project, in my view, on balance, the public interest against disclosure of this information, outweighs the public interest in favour of disclosure. 199I make a similar finding in regard to the deleted total dollar amounts of the projected value payment, the estimated cost of infrastructure etc. and the total value of LL's offer, in para 1(b), on pages 3 and 37, of LL's Schedule 3. The projected value payment and the estimated costs of infrastructure etc. are LL's projected estimates at the time of making its final bid and have not been incorporated into the PDA. However, as I have explained, the basis on which value payments are to be made have been incorporated into the PDA as have more detailed costs of infrastructure etc. The circumstances in which value payments are to be made has been disclosed and the PDA does not contain any dollar amount for these payments. The PDA does contain details of infrastructure costs and these have not been disclosed, I assume, on the basis of being commercial-in-confidence provisions. Accordingly, in my view, the public interest considerations against the disclosure of LL's projected total dollar amount of value payments and the estimated total dollar amount for cost of infrastructure should be given considerable weight. In light of this finding and my findings below, in regard to the fixed payment amounts, in my view, the same considerable weight should be given to the public interest considerations against disclosure of the total dollar value of LL's offer at para 1(b). At the same time, in my view, the public interest consideration in favour of the disclosure of these amounts is not considerable. 200In regard to the fixed payment dollar amounts in para 1(b), para 2(a) and 2(c), on pages 3, 4, 37 and 38, of LL's Schedule 3, in my view, considerable weight should be given to the public interest considerations in favour of disclosure of these deletions, as LL was the successful tenderer and the fact that these are fixed amounts, payable by LL, as consideration for the right to develop Barangaroo South, are those agreed to by the parties, under the PDA. In this regard, I note the requirements of para 30(b) and (h) of the GIPA Act, which require the disclosure of particulars of future transfers of significant assets to the contractor and any other key elements of a government contract following a competitive tender process. In my view, the fixed payment amounts are a particular of the proposed transfer of public owned land and if I am incorrect, they are certainly a key element of the PDA. 201Accordingly, I find that the public interest considerations against disclosure of the deleted the fixed payment dollar amounts in para 1(b), para 2(a) and 2(c), on pages 3, 4, 37 and 38, of LL's Schedule 3, does not, on balance, outweigh the public interest considerations in favour of disclosure. And on the basis of this finding, I find that the decision of BDA in regard to these deletions is not the correct and preferred decision and should be set aside and in substitution thereof a decision that ASD be granted access to that information.
(d) BM Final Phase - Schedule 3 Financial Return 202The deletions in the BM Final Phase Schedule 3 Financial Return are primarily the dollar amounts that BM has attributed to its identified costing and payments (fixed and value sharing). The remaining deletions are also related to the identified costing and payments. However, the majority of the information in BM's Final Phase Schedule 3 has been disclosed. 203BDA contends that a disclosure of the deleted information falls within the public interest considerations against disclosure in cl 1(d), 1(g), 4(b) and 4(d) of the table in subs 14(2) of the GIPA Act. 204For the reasons I have given above, in regard to the deletions in the LL Final Phase Schedule 3, I am satisfied that these public interest considerations against disclosure have been established. For the same reasons, I am also satisfied that these public interest considerations against disclosure should be given considerable weight. In my view, as BM was not the successful tenderer, the public interest considerations in favour of disclosure are not very strong. As I have mentioned, para 32(1)(b) of the GIPA Act expressly provides that details of an unsuccessful tender is confidential and not required to be disclosed in the agency's government contract register. This does not mean that in an access application, this information is not to be disclosed. However, in my view, having regard to the material before the Tribunal and my findings in regard to the public interest considerations against disclosure, on balance, these public interest considerations outweigh the public interest considerations in favour of disclosure. 205Accordingly, I find that the decision of BDA in regard to these deletions is the correct and preferred decision and should be affirm.
(g) Evaluation Panel and Executive Panel Minutes of Meeting 206As I have mentioned above, the only information that remains in dispute in these Minutes is the identity of the relevant proponent referred to in the commentary and a sentence at item 3.4 of the Draft Minutes of the Evaluation Panel Meeting on 7 December 2009 (item 3.4 deletion). The proponents are not named, but are identified through use of an alphabetic alias. In this regard, the copy of the Minutes provided to the Tribunal indicates that the alias of the preferred proponent, as at 7 December 2009, has been disclosed (see the first sentence in item 3.4). However, the alias of the proponents as mentioned in the various comments within the minutes has otherwise not been disclosed. 207BDA contends that a disclosure of the deleted information falls within the public interest consideration against disclosure in cl 4(d) of the table to subs 14(2) of the GIPA Act. BDA also asserted in its written submissions that ASD did not press access to the aliases of the proponents and in this regard referred to paragraph 18 of Mr McInerney's affidavit. In my view, this is not what Mr McInerney said. What he said was that the identity of the two proponents were ascertainable from the information disclosed in the documents the subject of these applications and other information available to the public. 208In regard to the deletion of the aliases, Mr Roberts explained that the same aliases were used, for each proponent, throughout the documentation relevant to the deliberative processes of the Final Phase RFDP. This included documentation in the form of Ministerial Briefing Notes, Budget Committee papers and for the purpose of having the various aspects of the proponents' final offers independently evaluated. The KPMG report, being an example of an assessment of this kind. 209Mr Roberts went on to acknowledge that in many cases, where the identity of the proponent has been deleted, a reader is able to deduce the identity of the proponent from the subject matter of the disclosed text. However, Mr Roberts continued by stating that the disclosure of the aliases would nonetheless prejudice the interest of BDA because the same alias is used for each proponent in the other Final Phase RFDP evaluation documents. The exact nature of that prejudice, he said, would depend on the information that the alias is paired with in the evaluation documents. In this regard, he referred to the KPMG report as an example where the same aliases were used. In my view, this assertion is of no assistance to BDA as the information in each document must be considered in its context and there has been no suggestion by BDA that there is any commercial sensitivity in the aliases that have been used. 210Mr Roberts also said that a disclosure of these aliases would prejudice BDA's 'legitimate business interests' as a disclosure would prejudice the integrity of BDA's tender process generally should proponents be reluctant to make full and frank bids within the Government procurement frame work. He asserts that by deleting the aliases, BDA has been able to disclose more information in these Minutes than it would otherwise have been able to disclose. 211[Not for publication]. 212In my view, the evidence of Mr Roberts is no more than mere assertion and fails to demonstrate how a disclosure of the proponent aliases in the Minutes in question could be expected to prejudice BDA's legitimate business interests, or the integrity of BDA's tender processes. With one exception, he has not identified any information that has been disclosed which also discloses the specific details of a proponent's bid. On the contrary, including the exception referred to by Mr Roberts, the information which has been disclosed appears to be no more than commentary of general evaluative nature, by the Evaluation Panel and the Executive Review Panel, on various aspects of the final bids. Finally, the fact that the same alias is used in other Evaluation Reports is not a basis on which to find a public interest consideration against disclosure. They appear to have been used primarily for ease of reference and administrative purposes. 213In regard to the item 3.4 deletion, Mr Roberts said a disclosure of this information would prejudice BDA's ability to run a competitive tender process and he relied on his confidential evidence in regard to the information in the KPMG Report. In my view, for the reasons I have given above, this assertion of Mr Roberts is not reasonably based. 214Accordingly, I find that BDA has failed to establish that a disclosure of the proponent aliases and the item 3.4 deletion falls into the public interest consideration against disclosure in cl 4(d). 215On the basis of my findings it is unnecessary for me to consider the s 13 public interest test. However, in the event I am wrong, I would find that on balance, the public interest consideration against disclosure, on balance, does not outweigh the public interest consideration in favour of disclosure. In this regard, I would have given considerable weight to the public interest considerations in favour of disclosure (i.e. enhancing Government accountability and increasing transparency of BDA's decision to recommend the nomination of the preferred proponent) considerable weight. 216Accordingly, on the basis of my findings, the decision of BDA in regard to the deletions in the Minutes of the Evaluation Panel and Executive Panel is not the correct and preferred decision and should be set aside and in substitution thereof a decision that ASD be granted access to that information.
(h) KPMG Report 217As I have indicated above, BDA refused access to the entire information in the KPMG Report. 218BDA contends that a disclosure of this information falls within the public interest consideration against disclosure in cl 1(d), 1(e), 1(g), 4(b), 4(c) and 4(d) of the table in subs 14(2) of the GIPA Act. 219In its written submissions, KPMG makes no reference to any of the prescribed public interest consideration against disclosure in the table in subs 14(2) of the GIPA Act. Instead, the submissions deal with ASD's claimed public interests in favour of disclosure and how a disclosure of the information in the KPMG Report would not satisfy any of these. As I have explained, the public interest considerations in favour of disclosure are, in effect, only relevant where it is necessary to determine where the balance lies between the competing public interests against and for disclosure. However, this issue only arises where it is found that a disclosure of the information could reasonably be expected to fall within one or more of the public interest considerations prescribed in the table to subs 14(2) of the GIPA Act. 220Nevertheless, on the basis of the evidence of Mr Brooke, I assume KPMG supports the claim of BDA in regard to the public interest considerations against disclosure of the information in the report. 221A summary of the evidence of Mr Brooke is set out above and I accept that the information in the Report includes the methodologies KPMG developed specifically for the purpose of providing financial advisory services to BDA. I also accept that this information is of commercial value to KPMG and a disclosure of that information could reasonably be expected to diminish the competitive commercial value of that information. 222For the reasons I have already stated, I am satisfied that the information in the Report was supplied in confidence and there is no question that the information, being part of BDA's competitive tender processes, is treated as being confidential and a disclosure of that information could reasonably prejudice the supply to BDA of such information which facilitates the effective exercise of its functions. That is, I am satisfied that BDA has established that the public interest considerations against disclosure in cl 1(d) and 1(g) apply. 223As stated by Mr Roberts, the KPMG Report also contains detailed information regarding the financial proposals and financial modelling of the BM and LL final offers and for the reasons I have already given, I am satisfied that a disclosure of this information could reasonably be expected to prejudice the legitimate business, commercial and/or financial affairs of LL, and BM. I am also satisfied that the information, in part, is information of a commercial value to LL and BM and if disclosed could reasonably be expected to diminish the competitive commercial value of that information. 224Mr Roberts explained that the KPMG Report was crucial to BDA's deliberative processes in selecting the successful tenderer and a disclosure of the information in the report would disclose the precise manner in which that deliberation (regarding which proponent had the superior financial proposal) was carried out. This he said, would significantly prejudice BDA's future deliberation processes as future bidders would become aware of the manner in which BDA assessed, benchmarked and compared tenders. 225While the KPMG Report formed a critical part (i.e. advice) in BDA's deliberations in selecting the successful tenderer, that process has now been completed. Whether Mr Roberts' assertion that a disclosure of the information in the Report could be expected to prejudice BDA's future deliberations on other tenders is reasonably based, is difficult to assess. The Report is clearly specific to the tenders of LL and BM in regard to the Barangaroo South Project. Future tenders and BDA's deliberations thereon will undoubtedly involve different issues. 226Notwithstanding this, I am satisfied that BDA has established that a disclosure of the information in the KPMG Report falls within the public interest considerations against disclosure in cl 1(d), 1(g), 4(c) and 4(d) of subs 14(2) of the GIPA Act. And on this basis, it is necessary to consider where the balance lies between the competing public interests, in accordance with the test in s 13 and also having regard to the objects of the GIPA Act and ss 12(1) and 15. 227In its submissions, ASD contended that the public interest in understanding the comparisons that were made in the Report is of particular cogency because it was relied on by BDA in reaching its decision. That is, the public interests in favour of disclosure are argued to be very strong. These being enhancing Government accountability, informing the public about operations of the agency and ensuring the effective expenditure of public funds. 228While I accept that there is a strong public interest in understanding the comparisons made between the LL bid and that of BM, in my view, given the sensitive commercial nature of the information, the public interest consideration against disclosure should be given considerable weight. That is, more weight than the public interest in favour of disclosure. As pointed out by Mr Brooke, the information in the report is analytical in nature, based on the detailed commercially sensitive information LL and BM had provided in their respective bids and it does not recommend one bid above the other. Accordingly, I find, on balance, that the public interest consideration against disclosure outweighs the public interest in favour of disclosure. 229On the basis of these findings, I find that the decision of BDA in regard to the information in the KPMG Report is the correct and preferred decision and should be affirmed.
Conclusion and Orders 230In summary, for the reasons set out above, I have found that the decision of BDA in regard to the following deletions is not the correct and preferred decision and should be set aside and in substitution thereof a decision that ASD be granted access to those deletions: (a)the deletions in the 2009 Valuation and the 2010 and 2011 Updated Valuations, (b)the deletions on pages 67 and 107 of BDA's Final Phase RFDP - Addendum No. 2, (c)the deletions on pages 124 to 126 (i.e. para 3.1.1) of BDA's Final Phase Proponent Brief to BM, (d)the deletions on pages 140 and 147-149 of BDA's Final Phase Proponent Brief to LL, (e)the deleted fixed payment dollar amounts in para 1(b), para 2(a) and 2(c), on pages 3, 4, 37 and 38, in LL's (Stage 1 RFDP) - Final Phase - Schedule 3, (f)the deletions in paragraph 2(e)(2), under the heading 'Fixed Payments', and the last sentence in 2(a), under the heading 'Value Payments', in LL's (Stage 1 RFDP) - Final Phase - Schedule 3, and (g)the deletions in the Minutes of the BDA Evaluation Panel and Executive Review Panel. 231In regard to the remaining deletions the subject of these applications, for the reasons set out above, I have found that the decision of BDA is the correct and preferred decision and should be affirmed. 232In accordance with my findings I make the following orders in regard to each application. Application File No 123123
Amendments 07 December 2013 - typographical error Amended paragraphs: Coversheet, paragraphs 230 and 231 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2013
Australians for Sustainable Development Inc
Barangaroo Delivery Authority
(1992) 36 FCR 111
(1993) 1 VR 41
(1985) 159 CLR 550
[2006] HCA 45