Bennison v NSW Department of Premier and Cabinet

NCAT Administrative and Equal Opportunity|2016-05-18

Solicitors: Leslie Hargrave Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1610124

Background

This is an application by Mr Scott Bennison, seeking review of a decision of the Respondent, the New South Wales Department of Premier and Cabinet, made pursuant to section 58(1)(d) of the Government Information (Public Access) Act 2009 (NSW) ("the GIPA Act").
In 2015 the New South Wales Government engaged KPMG to provide certain advice on local government reform across the State. The Respondent was responsible for instructing KPMG. KMPG was instructed that the documents it was preparing were for submission to Cabinet or were inputs for Cabinet documents.
The Respondent commissioned KPMG to prepare the following reports: a. Business Case and accompanying methodology paper outlining a cost benefit analysis of mergers b. Options analysis documents that informed the business case c. Merger proposals and drafts d. A macro-level report outlining the high-level benefits of mergers, titled "Local Government Reform Mergers - Impact and Analysis" e. A technical paper outlining the assumptions used to model benefits entitled Outline of Financial Modelling and Assumptions for Local Government Merger

The approach to be taken by the Tribunal

Each of the parties has provided written submissions and they are in general agreement in regard to the approach to be taken by the Tribunal. As the Respondent has noted, the procedure established by section 106 of the GIPA Act with respect to Cabinet information was recognised by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]-[12]. At first instance, at paragraphs [45] to [47], Senior Member Walker explained the operation of section 106 as follows: "45 No doubt in recognition of Cabinet's role and functioning as a collective, indirectly elected executive branch of government, s 106 establishes a special and very different decision-making matrix for claims to the Cabinet information presumption. Not only is the tribunal "limited to deciding whether there were reasonable grounds for the agency's claim", but it is explicitly "not authorised to make a decision as to the correct and preferable decision on the matter" (s 106(1)). The tribunal's task is thus not to investigate the claim de novo or to engage in normal merits review. Its function is more analogous to that of a court undertaking judicial review. 46 In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". "Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them". 47 The respondent bears the onus of establishing that it had reasonable grounds for the claim (s 105(1)) and it must do so on the balance (meaning preponderance) of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, [65][2004] FCA 143; , 208 ALR 73, 86."
I agree with that assessment. Accordingly, pursuant to section 106, with respect to documents the Respondent has identified as containing Cabinet Information the Tribunal is limited to deciding whether there are reasonable grounds for the claim and is not authorised to make a decision as to the correct and preferable decision.
If, on the basis of the Respondent's evidence and submissions, the Tribunal is not satisfied that the Respondent had reasonable grounds for its claim in relation to any particular document, the Tribunal may review the document in accordance with section 106(2).
There was some discussion in regard to the approach to be taken to that second stage of the process. The discussion concerned whether or not the Respondent could adduce further evidence at that stage and whether the Applicant's legal advisors would be permitted to attend a confidential hearing during which the Tribunal reviewed documents in accordance with section 106(2). For the reasons which will become apparent it is not necessary that I determine those issues.
The Tribunal is not bound by the rules of evidence and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms. The restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act 1995 are not applicable: section 38 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). Section 38 provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note : Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
The approach to be taken by the Tribunal as provided for in section 38 of the NCAT Act is the same as that discussed by the High Court in relation to the former Consumer, Trader and Tenancy Tribunal of New South Wales in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]- [17] some citations omitted: "The Tribunal may, subject to the [Consumer, Trader and Tenancy Tribunal Act 2001], determine its own procedure. It is not bound by the rules of evidence and may inquire into, and inform itself on, any matter in such manner as it thinks fit, subject to the rules of procedural fairness. That freedom is enjoyed by many administrative tribunals. The term "rules of evidence" does not lay out with precision its metes and bounds. Nor does it exclude the discretionary application of such rules. But the authority of the Tribunal to "inform itself on any matter in such manner as it thinks fit" indicates that it is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law. There are qualifications upon the Tribunal's procedural freedom. One, which is explicit, is the requirement to observe procedural fairness. The Tribunal's modus operandi must also serve its function, which, in this case, was to hear and determine a building claim. That function implies a rational process of decision-making according to law. A decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process. The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [(1933) 50 CLR 228 at 256] that those rules "represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth". It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to "creep back through a domestic procedural rule" [Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33 at 41 per Brennan J.]. The Tribunal is required to act as expeditiously as is practicable. A member may, in any proceedings, give procedural directions including directions that, in the opinion of the member, will enable costs to be reduced and will help to achieve a prompt hearing of the matters in issue between the parties in the proceedings. It was not in dispute that this power would enable the Tribunal to hear and determine, as it did in this case, a particular issue where such determination is likely to expedite the proceedings."

The Material Before The Tribunal

Each of the parties has filed written submissions. The Applicant relies on his own affidavit sworn on 17 May 2016.
As noted, the Respondent bears the onus of establishing that it had reasonable grounds for its claim. It relies on the evidence of its General Counsel, Mr Paul Miller who provided affidavit evidence and also appeared at the hearing and was cross examined. Mr Miller's knowledge and experience is clearly relevant to the matter. He stated that: ● he has direct experience and knowledge of Cabinet and its processes as the Department is responsible for the provision of secretariat services to the NSW Cabinet. ● he has overall responsibility for the provision of secretariat services to Cabinet. ● he provides advice on legal, administrative and procedural issues relating to the conduct of Cabinet meetings and the handling of Cabinet records. ● he also provides advice to the Premier for his use in Cabinet and has been responsible for the drafting of numerous Cabinet submissions for the Premier's submission to Cabinet, and the drafting of Cabinet decisions. ● he has also attended Cabinet as Secretary to Cabinet in the absence of the Cabinet Secretary. ● he has attended various meetings of a number of Cabinet Committees, including Cabinet Standing Committees on Legislation, the Budget and Public Administration.
In relation to the information in issue in these proceedings Mr Miller stated that he sought information from other employees of the Respondent. In particular he obtained information from Mr Dennis Smith, Solicitor in the Respondent's Local Government Reform Division, and Ms Eleanor Ritchie, Acting Director in the Respondent's Office of General Counsel.
In cross-examination he conceded that he relied on the information that he was given by Mr Smith and Ms Ritchie where he did not have direct knowledge of relevant issues.
He also stated that he sought information from Ms Corrine Moffatt in regard to the question of whether the Minister had considered the relevant options and whether Options Analysis documents had been provided to the Minister.
Neither Mr Smith, Ms Ritchie nor Ms Moffatt provided evidence in the proceedings. The advice that they gave to Mr Miller is therefore hearsay and cannot be tested.
Nevertheless, in the circumstances, I accept Mr Miller's evidence notwithstanding that some of that evidence is hearsay and cannot be tested.

Mr Miller's evidence

Mr Miller provided an outline of the Cabinet and Cabinet processes. He summarised the process as including many stages: Cabinet involves a pattern of deliberations which forms the process by which the Government makes decisions on major policy issues. It may include the processes under which a Cabinet submission ("Submission") is prepared by an agency for a Minister to submit to Cabinet, the lodgement of the Submission by a Minister to the Cabinet Secretariat, the circulation of the Submission to Ministers for consideration and advice, and the provision of advice on the Submission either to all Ministers or to a particular Minister for use in Cabinet. A Cabinet meeting at which a Cabinet decision is formally taken and recorded may be the culmination of this deliberative process, but the term Cabinet refers to a process that is broader than that particular meeting. ... Decisions of Cabinet are based upon advice it receives from Ministers, government officers and in some cases external consultants. Usually, the main piece of advice to Cabinet is in the form of a Cabinet Submission. A Cabinet Submission is a submission made to Cabinet or a Committee of Cabinet by the Minister responsible for the subject discussed in the Submission. It constitutes the submitting Minister's principal communication with Cabinet to assist its deliberations on the matters before it. The Submission reflects that Minister's views or opinion on the issue he/she presents to Cabinet. A Cabinet Submission is usually prepared by government officers but it is approved and signed by the Minister and represents the Minister's position. In some cases copies of external consultant's reports are annexed to a Cabinet Submission. Cabinet relies significantly on the advice and information it receives from Ministers, government officers and, on occasion, external consultants to make its decisions. As such it is vital to the development of public policy and to the good administration of the affairs of the State that Cabinet be able to receive confidential advice and information on the matters that come before it for consideration. In order to achieve this, it is necessary that Cabinet and its Ministers be able to be confident that advice and information which Ministers put before Cabinet and advice they receive from government officers or external experts will remain confidential. It is also necessary to ensure that the persons preparing the advice for Cabinet and Ministers are confident that any advice and views they seek from other Departmental officers or from external experts will remain confidential.
Mr Miller expressed the view that it is vital to the development of public policy and the good administration of the affairs of the State that: a. Ministers in Cabinet are able to have a free and candid discussion on issues that come before it for determination; b. Ministers and Cabinet are able to obtain full and frank advice from government officers and external experts on issues that come before a Cabinet for determination; c. Those advising the Ministers and Cabinet are able to obtain full and frank advice and views of other government officers and external experts on matters in respect of which they are providing advice to a Cabinet.
Mr Miller identified the information that was captured by the Applicant's GIPA access application which the Respondent asserts is Cabinet Information for the purposes of Clause 2 of Schedule 1 to the GIPA Act.
He conceded that he did not read the documents that are in issue for the purposes of these proceedings but said that he may have done so in the context of other litigation. For these proceedings he looked at the documents and scanned their contents. He is aware of the progeny of the documents and the circumstances in which they were prepared and said that he is therefore able to confirm that they contain Cabinet Information.
He considers that the disclosure or threat of disclosure of documents that contain this information will adversely affect the proceedings of Cabinet and the quality of the advice given to Cabinet and will therefore inhibit Cabinet's decision-making process. Further, he considers that the disclosure of the information that is within the scope of the present GIPA application would tend to mute and impede the advice given to Cabinet and mute and impede the discussions and deliberations of Cabinet on future matters, including unrelated matters. He said that this is because Ministers and those preparing advice for Cabinet could no longer be confident that their confidentiality would be respected and upheld by the State's tribunals.

Records 1 - 4

In relation to the documents that were identified as records numbered 1-4, Mr Miller stated: Record 4, titled "Implementation of Local Government Mergers: Business Case", referred to in the schedule at Annexure A simply as "Business Case", is a document regarding proposed local government reforms which was prepared by KPMG for the dominant purpose of being submitted to Cabinet for Cabinet's consideration and was, in fact, submitted to Cabinet. Records 1-3 are draft versions of Record 4.
Under cross-examination Mr Miller stated that he had reviewed Record 4 and the cabinet submission with respect to that document and read the Cabinet decision. He also confirmed the dominant purpose of the document with Mr Smith and Ms Ritchie and said that the dominant purpose was apparent. He could not say that there was no other purpose for which it might have been prepared but could not suggest what other purpose there might have been.
Mr Miller said that the dominant purpose for which each of the documents was prepared was framed prior to their preparation. As noted above, KMPG was instructed that the documents it was preparing were for submission to Cabinet or were inputs for Cabinet documents.
Clause 2(4) of Schedule 1 to the GIPA Act provides: (4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet.
Mr Miller accepted that Record 1 - 4 contain some factual material but denied that any of those documents "consists solely of factual material'. He was able to form that view from his own observations and did not rely on advice from Mr Smith and Ms Ritchie in that regard. He did not accept that a record becomes 'factual material' once it is adopted by a Minister.
In D'Adam v New South Wales Treasury [2014] NSWCATAD 68 Senior Member Walker stated at paragraphs [70] to [71]): 70 The applicant also contends that both the Roadmaps and the allocation letter attachments cannot be treated as Cabinet information because cl 2(4) excludes from that category information "to the extent that it consists solely of factual material" unless it would, relevantly, " reveal or tend to reveal information concerning any Cabinet decision or determination". The applicant contends that the Roadmaps simply record numerical savings targets and whether they have been met, and the attachments simply record the cap limits for each agency and "between accounts". While the limits when first proposed might have been characterized as opinions, advice or recommendations rather than as facts, following their adoption by the relevant decision-makers, they became matters of fact. 71 The statutory test, however, is whether the information consists solely of factual material, not whether it contains factual material as well as other material of a non-factual nature. In this case the information, whether in the Roadmaps or the attachments, consists to a great extent of targets, projections and estimates. While the setting of targets and the making of projections and estimates is in one sense a fact, the information itself consists also of opinions or recommendations about the desirability, likelihood and attainability of certain outcomes. It is not solely factual material. Nor does it lose that character because of the largely in numerical form. The same would be true of the budget documents themselves.
I agree with that view. In order to fall within the scope of Clause 2(4) of Schedule 1 to the GIPA Act it is not sufficient that the information in the record is only partly factual material.
Mr Miller's evidence is that the records contain some factual material but also contain analysis and comment. He also said that if the records were released it would reveal or tend to reveal the position that the Minister for Local Government had taken on a matter in Cabinet.
Except to the extent that it relies on information from Mr Smith and Ms Ritchie, Mr Miller's evidence has not been called into serious question on cross-examination. In the circumstances I am satisfied that there are reasonable grounds for the Respondent's claim that Record 4 was prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration and was, in fact, submitted to Cabinet. I am also satisfied that there are reasonable grounds for the Respondent's claim that Records 1-3 are draft versions of Record 4.
It follows that there are reasonable grounds for the Respondent's claim that Records 1 - 4 contain Cabinet information for the purposes of Clause 2 of Schedule 1 to the GIPA Act and, therefore, that there is an overriding public interest against disclosure of that information.

Records 53-63

In relation to Record 57 Mr Miller stated: Record 57, titled "Local Government Reform: Merger Impacts and Analysis Report", is a document regarding proposed local government reforms which was prepared by KPMG for the dominant purpose of being submitted to Cabinet for Cabinet's consideration and was, in fact, submitted to Cabinet, in the form of an annexure to a Cabinet Submission.
He further stated: Records 53-56 and 58-63 are draft versions of Record 57.
As noted above, information is not Cabinet information merely because it is contained in a document attached to a document that was submitted to Cabinet.
Under cross examination Mr Miller repeated the evidence that he gave in regard to Record 4. He confirmed that Mr Smith and Ms Ritchie had told him that the document was prepared for the dominant purpose of submission to Cabinet. However, he said that he didn't just accept what they had told him. He had looked at the documents himself and formed his own view. He did not accept that it was necessary to read the documents from cover to cover in order to form a view that the document was prepared for the dominant purpose of submission to Cabinet.
I accept Mr Miller's evidence. In the circumstances, as with Record 4, I am satisfied that there are reasonable grounds for the Respondent's claim that Record 57 was prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration and was, in fact, submitted to Cabinet. I am also satisfied that there are reasonable grounds for the Respondent's claim that Records 53-56 and 58-63 are draft versions of Record 57.
It follows that there are reasonable grounds for the Respondent's claim that Records 53-56, 57 and 58-63 contain Cabinet information for the purposes of Clause 2 of Schedule 1 to the GIPA Act and, therefore, that there is an overriding public interest against disclosure of that information.

Records 6-52

In relation to Records 6-52 Mr Miller stated: Records 6-52 titled "KPMG - Options Analysis" are documents concerning potential local government reforms. The documents detail local council amalgamation scenarios that were prepared for the purpose of submission to the Minister for Local Government, for his consideration. The Options Analysis documents informed a document which was prepared for the purpose of submission to Cabinet and was ultimately submitted to Cabinet: the "Implementation of Local Government Mergers: Business Case" (Record 4). If any of Records 6-52 were released, that would have the effect of revealing the various positions that the Minister for Local Government was considering taking on the matter of local council reform for the purposes of a discussion in Cabinet.
The Applicant noted that Mr Miller's affidavit evidence with respect to each Options Analysis does not explain: a) How, and to what extent, each "informed" the Business Case; b) How, and to what extent, each revealed, or tended to reveal, a position that the Minister was considering taking in Cabinet on a particular matter. c) the "matter(s)" in respect of which the Minister was considering taking certain positions. In the Applicant's submission, it is not enough to describe the matter as broadly as "local council reform" or "local government amalgamation options". d) the connection between each Options Analysis and the "matter(s)" contemplated by clause 2(1)(e) of Schedule 1 to the GIPA Act.
The Applicant submitted that Mr Miller's evidence does not satisfy either limb of clause 2(4).
The Applicant also notes that there is a crucial difference in language between clause 2(1)(e) and clause 2(4)(b). Clause 2(1)(e), on which the Respondent relies, refers to the position that a Minister "is considering taking". However, clause 2(4)(b) refers only to the position that a Minister "has taken, is taking or will take" on a matter in Cabinet.
Mr Miller was cross-examined in relation to these issues. As noted above, he did not accept that any of the records consists solely of factual material. I accept that evidence. There is therefore no need to consider clause 2(4) further.
He stated that the Options Analysis documents collectively provided input to the Business Case (Record 4). However, he conceded that there is a real possibility that one or more of the Options Analysis documents did not inform the Business Case.
As noted, the Respondent relies on Clause 2(1)(e). This provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet.
It was not apparent from Mr Miller's evidence whether any or all of the Options Analysis documents had been provided to the Minister. For that reason, Mr Miller was recalled to give further evidence. He indicated that since his earlier evidence he had spoken with Ms Moffatt who had told him that all of the Options Analysis documents had been provided to the Minister. The Minister had looked at the Options Analysis documents, had discussed them with the Premier and decided what would go to Cabinet.
Mr Miller also said that Ms Moffatt had told him that the Minister had provided that options to KPMG and that they had not been developed by KPMG.
The Applicant submitted that this aspect of Mr Miller's evidence should be given little weight as, at best, it was hearsay and potentially second hand hearsay. Ms Moffatt had not given evidence and the evidence could not be tested.
There can be no dispute that the Applicant is correct in his assertion that Mr Miller's evidence in regard to what Ms Moffatt had told him is hearsay. However, it is consistent to Mr Miller's other evidence.
Mr Miller also gave evidence that it would be possible to ascertain from the information included in these records what position the Minister had taken on the matter in Cabinet. I accept that evidence.
I accept that the Minister probably considered the Options Analysis documents in the context of "the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet".
I accept that it is probable that the options had been provided to KPMG and that KPMG produced the Options Analysis documents in response. The Minister then considered the Options Analysis documents. In those circumstances the information would fall within the scope of Clause 2(1)(e). In my view, there are reasonable grounds for the Respondent's claim that Records 6-52 contain information that the Minister was considering taking on the matter in Cabinet.
That being the case, on balance it is my view that the Respondent's evidence satisfies the requirements of section 106(1) of the GIPA Act.
It is not necessary that I view and consider the documents that have been withheld.
Further, as Senior Member Walker noted in D'Adam v New South Wales Treasury at paragraph [73]: Having found that there were "reasonable grounds" in respect of both sets of information, the tribunal's jurisdiction is exhausted: IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79, [42]-[44]. It is thus not necessary to consider the application of the public interest test within ss 12 to 15 of the GIPA Act.
It follows that the determination should be affirmed insofar as it relates to Records 1-4, and 6-63.
I note that the Applicant has also sought review of the Respondent's determination that it does not hold any documents that fall within the scope of the remaining paragraphs of his access application.
The matter is to be relisted for a directions hearing on Tuesday 24 May 2016 at 10 am to consider the progress of the remaining aspects of the application. However, if the parties are able to agree on a timetable for the filing and service of material they have leave to approach the registry with consent orders to be made in chambers and for vacation of that directions hearing.

Orders 1. The decision under review is affirmed. insofar as it relates to Records 1-4, and 6-63. 2. The matter is listed for further directions on Tuesday 24 May 2016 at 10 am 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: 23 May 2016

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