Bayne v Department of Premier and Cabinet

Applicable legislation

1. The relevant provisions of the GIPA Act provide: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 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.

Consideration

1. I have examined the material provided on a confidential basis by the respondent. Other than the material already released by the respondent following the confidential session on 16 February 2016, the material provided to the Tribunal does (to my mind) constitute material which falls within the criteria of Clause 5 of Schedule 1.
2. The material is contained within the Confidential Exhibits 'RC 1' filed in proceedings 1510534, and 'RC 1' filed in proceedings 1510536.
3. In respect of the legal opinion or advice, I note that the respondent has not waived privilege. In addition I note that there are other matters and material referred to in that advice and the material is in practice to be considered jointly with that material. The material is included and some of it is characterised as cabinet material. The material was in effect considered initially in confidential session, and in so far as the Tribunal established a preliminary view that some of that material should not be withheld (a view that the respondent conceded), the remaining material has been thoroughly considered.
4. In my view the provenance and import of the data or information within those documents is sufficiently related to the legal advice and is information brought into being for the purpose of providing that legal advice or reflecting that advice. In addition much of the data could be characterised as data or information which would be covered by other provisions of Schedule 1. However, where possible the respondent has released as much material as they assess as not identifying or disclosing a legal position adopted from legal advice sought and obtained by the respondent.
5. The withheld information is in my view clearly providing advice about those documents, including their import and meaning, and their purpose and impact if any on the agency.
6. In the case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 I addressed the issue of Clause 5. Legal Professional Privilege (Sch 1 Cl 5) 54.The general provisions relating to the existence of legal professional privilege are as follows. The material must be: ◦In the context of a client and lawyer relationship, ◦That there is a confidential nature to the communication or the document(s), ◦The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation. 55.These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW).
7. In my view after examining the withheld material, it is clear that the identified documents constitute material that would fall within the scope (on any objective analysis), of material referred to in paragraph 16 above (as in the case of Hutchinson). In addition the identified material does appear to be in scope of the GIPA Act request of the applicant.
8. Whilst the material is clearly within the scope of the GIPA Act request, and thereby of possible interest to the applicant, and (given the nature of the relationship between the applicant and the material sought) possibly of high relevance to the applicant, because the material falls within the scope of Schedule 1, that is not determinative of release. Personal factors of the application do not come into any assessment of this material (as per section 55 of the GIPA Act) as the material is conclusively presumed to have an overriding public interest against disclosure under the GIPA Act.
9. As the matter has been closely examined in the confidential hearing, and the respondent was at times represented by two capable legal practitioners, I see no need to provide confidential written reasons as to why the material should be withheld and that aspect of the respondent's decision be upheld. This situation would not assist the applicant as they were not privy to the confidential session or in addition would not be privy to any confidential reasons for decision.
10. The provisions of section 107 prevent disclosure of both the consideration of the material and any details of the reasons which would identify the material. The section provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
11. Having carefully considered the Schedule 1 material to which these written reasons relate, and noting that the majority of the material sought has been disclosed, as well as a further significant portion of the originally claimed Schedule 1 material, in my view the conformity of the data to the words of the clauses of the schedule are self- evident when one has regard to the data.
12. I note that the reasons for decision in the separate case of Bayne v Department of Environment and Heritage [2016] NSWCATAD 52 dealt with one suite of data (Legal Professional Privilege). In that matter however minimal aspects of that data (Schedule 1 material) had been released prior to adjudication by the Tribunal, but other information had been released relating to whether there were significant public interest reasons against disclosure.
13. In the current matter, a large volume of data has now been released, and in my view the withheld data (as at 23 February 2016) is properly characterised as information falling within the provisions of Schedule 1.
14. I note that all other aspects of these three proceedings have now been resolved as between the parties. (See paragraph 5 above).

Conclusion

1. It therefore follows, that the correct and preferable decision is to uphold the decision of the respondent as at the time of compliance with the Tribunal's orders following the hearing on 16 February 2016. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 13 April 2016