D'Adam v New South Wales Treasury and the Premier of New South Wales

Statutory framework

1. The relevant legislation to the purposes of this appeal is the GIPA Act and the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
2. As observed by Professor Walker SM in the proceedings below (D'Adam v New South Wales Treasury [2014] NSWCATAD 68), the object of the GIPA Act is to "maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" by providing access to government information and, relevantly, restricting such access "only when there is an overriding public interest against disclosure" (s 3). The term "government information" means information contained in a record held by an agency and an "agency" includes a government department. There is no dispute the GIPA Act applies to the first respondent. Nor is there dispute that the Roadmaps are government information for the purposes of the GIPA Act.
3. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding interest against disclosure [emphasis added]. Section 14(1) provides that it is to be conclusively presumed there is an overriding public interest against disclosure of any of the government information described in Schedule 1. Schedule 1 details the government information to which s 14 applies and includes "Cabinet information" (cl 2). Because of the relevance of this provision to the issues in dispute between the parties, it is convenient to extract this provision in its entirety. Clause 2 provides as follows: 2 Cabinet information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as "Cabinet information") contained in any of the following documents: (a) a document that contains an official record of Cabinet, (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e). (2) Information contained in a document is not Cabinet information if: (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence. (3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1). (4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. (5) In this clause, "Cabinet" includes a committee of Cabinet and a subcommittee of a committee of Cabinet.
4. Section 106 of the GIPA Act establishes a special procedure for the review of decisions about Cabinet and executive council information and provides as follows: 106 Decisions about Cabinet and Executive Council information (1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter. (2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it. (3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter. (4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter. (5) The Premier is a party to any proceedings on an application under this section.
5. The burden in establishing that a decision is justified lies with the agency (s 105(1) of the GIPA Act).
6. Section 80(1) of the CAT Act provides that an appeal against an "internally appealable decision" may be made to the Appeal Panel by a party to the proceedings in which the decision was made. An "internally appealable decision" is a decision over which the Tribunal has "internal appeal jurisdiction" (s 32(4) of the CAT Act). The Tribunal has "internal appeal jurisdiction" over any decision made by the Tribunal in proceedings for an "administrative review decision" (s 32(1)(a)). An administrative review decision of the Tribunal is a decision determining a matter over which it has administrative review jurisdiction, being a decision of an administrator in respect of which the Tribunal has jurisdiction to exercise functions under enabling legislation (s 30).
7. Under subs 80(2)(b) of the CAT Act an internal appeal may be made as of right in respect of a final or ancillary decision on any question of law but with the leave of the Appeal Panel on any other grounds.
8. In determining an internal appeal, the Appeal Panel has broad powers under s 81 of the CAT Act and may make such orders as it "considers appropriate in light of its decision" on the appeal. Those orders include, but are not limited to, orders that the appeal be allowed or dismissed, the decision under review be confirmed, affirmed or varied, the decision under appeal be quashed or set aside, the decision under appeal be quashed or set aside for another decision to be substituted or that the whole or part of the case be reconsidered by the Tribunal, either with or without further evidence, according to the directions of the Appeal Panel.
9. It is common ground that the Tribunal had jurisdiction to review the decision of the first respondent to refuse access to the Roadmaps and that the Appeal Panel has jurisdiction to determine this internal appeal. It is also common ground that the issues raised by the appellant raise questions of law. Accordingly, this is an appeal as of right and there is no need for leave to appeal on the merits.

Grounds of appeal and submissions of the parties

1. The information that is relevant to this matter are Roadmaps prepared by New South Wales government agencies. The Roadmaps were described by Professor Walker SM at [15] as follows: The RPM methodology involves the creation of "Roadmaps" or detailed savings plans that have an "owner" and a "sponsor" and sets out agreed milestones against which progress can be monitored. Agencies are responsible for preparing the Roadmaps to identify savings and to develop them with the assistance of FEO. The RPM methodology was selected for its rigorous and consistent approach, with Roadmaps containing more than merely statistical or factual information. The template comprises four pages, the first requiring specific identification of the particular part or program of an agency that is to be reformed, the owner, approver and sponsor, and an overview that sets out the objectives and key metrics together with the financial background and assumptions. It also requires information about what is in scope and out of scope, details of the implementation team, key stakeholders, critical interdependencies, risks to be managed and mitigation plans. The second page requires details of the impacts of all financial and non-financial milestones. The third page is for the assessed DICE score (duration, team performance integrity, senior management commitment, local commitment and effort). The fourth page is a chart that sets out the total savings profile over time.
2. There is no contest about this description.
3. When this matter was heard in the Tribunal below, much of the focus about the Roadmaps was on the construction of Sch 1, cl 2(1)(b) of the GIPA Act. This was apparent from the submissions and the reasons for decision.
4. The appellant's amended grounds of appeal and written submissions principally focussed on whether the Tribunal had erred in its construction of Sch 1, cl 2(1)(b). According to the appellant, the evidence tendered by the respondents did not establish that the Roadmaps themselves, rather than the information in the Roadmaps, were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration. The Tribunal therefore misconstrued Sch 1, cl 2(1)(b) and misapplied the test by concluding there were reasonable grounds for the claim that the Roadmaps fell within the definition of Cabinet information. In contrast, the respondents contended that the Roadmaps themselves were prepared for the dominant purpose of submission to Cabinet and this was the basis for the claim. The Tribunal made such a finding. However, to the extent the Tribunal also found that information in the Roadmaps was prepared for Cabinet, described as the "alternative finding" in their submissions, this was supported by Sch 1, cl 2(1)(b).
5. During the hearing of this appeal, it emerged that a critical issue for determination was whether there was a finding by the Tribunal that there are reasonable grounds for the claim by the first respondent that the Roadmaps were prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration.
6. This is a threshold issue. If there was no such finding, the appellant submitted that the decision must be set aside and remitted for reconsideration under s 106(2) of the GIPA Act. The appellant further submitted that there was no evidence to support such a finding and that the Tribunal at [54] rejected the proposition that the Roadmaps themselves must be prepared for the dominant purpose of their being submitted to Cabinet for cl 2(1)(b) to apply. According to the appellant, the Tribunal's findings at [54] and [57] suggest it proceeded on the basis that only quarterly reports, which summarised or incorporated information from the Roadmaps, were prepared for the dominant purpose of submission to Cabinet. The Tribunal thereby wrongly focussed on the information rather than the Roadmaps and misconstrued and misapplied cl 2(1)(b).
7. The respondents submitted that the Tribunal clearly made the finding that the Roadmaps were prepared for the dominant purpose of submission to Cabinet based on the uncontroverted evidence of a senior public servant. The Tribunal also found that the quarterly reports containing information from the Roadmaps were prepared for the dominant purpose of submission to Cabinet. There were reasonable grounds for the first respondent's claim because the information in the Roadmaps was Cabinet information on either basis. The appeal should therefore be dismissed.
8. In summary, having regard to the amended grounds of appeal and the written submissions, but more particularly the oral submissions of the parties at the hearing, the questions for determination on the appeal were: 1. What was the relevant finding of the Tribunal about the Roadmaps? 2. Was the finding open to the Tribunal? 3. Did the Tribunal misconstrue Sch 1 cl 2(1)(b) of the GIPA Act?
9. For the reasons outlined above, these issues were interrelated.

Findings of the Tribunal about the Roadmaps

1. The hearing proceeded on the basis of sworn evidence from Mr Stephen Ronald Brady, the deputy director-general in charge of the Sector Performance and Coordination Group at the Department of Premier and Cabinet, and Mr Brian John Cheney, director of the Fiscal Effectiveness Office (FEO) with New South Wales Treasury. Their evidence comprised both open and confidential affidavit evidence. The witnesses were cross-examined. The appellant tendered evidence comprising an affidavit filed in proceedings before the Industrial Relations Commission of New South Wales, an extract from the webpage of Boston Consulting Group (BCG) and the Code of Conduct and Ethics for Public Sector Executives, issued 19 November 1984. Attached to the affidavit filed in the Industrial Relations Commission proceedings was a document headed "Whole of Government Savings Measures - Monitoring Plan", to which a Roadmap template for the IR workplace initiative was attached.
2. The Tribunal summarised the background leading to the preparation of the Roadmaps at [13] to [19]. We do not understand there to be any contest between the parties in respect of these matters.
3. The Tribunal recorded the evidence of Mr Cheney to the effect the government committed to a range a savings and reforms in 2011 to "correct the structural budget deficit and to create a financial capacity to implement new initiatives". The FEO was created at that time to provide structured monitoring and assessment of savings reforms by government agencies. The FEO retained BCG to prepare the methodology and software systems to implement the savings incentives. BCG prepared a Rigorous Program Management (RPM) methodology and worked with the FEO to implement the methodology so that agencies could report to the Expenditure Review Committee (ERC), which was a Cabinet committee, on the progress of their savings targets. The reports were prepared quarterly by each government cluster, a "cluster" comprising a group of government agencies in a policy area headed by a department.
4. As already noted, the RPM methodology involved the creation of Roadmaps. The Roadmaps were rigour tested by the FEO before being uploaded into the system. The FEO prepared quarterly reports for submission to ERC, including a quarterly "whole of government" report which contained detailed analysis of the performance of government agencies, highlighting key risks and emerging pressures.
5. Relevantly, the Tribunal recorded the following in relation to the Roadmaps, at [24] to [26]: 24. Roadmaps. Roadmaps are created by agencies logging on to the FEO and entering information into the roadmapping template. A Roadmap is created for each savings project and identifies key milestones that need to be completed in order for the savings to be realized. The roadmap owner in the agency updates the milestones in the roadmap each month about progress achieved (or not) and that provides an early warning promoting discussion and action. 25. Summary information about every roadmap is submitted to the Expenditure Review Committee of Cabinet quarterly so as to provide an assurance to the committee that savings allocated to clusters as part of the annual budget process are supported by detailed and robust savings plans. Mr Cheney deposed that throughout his time as director of FEO, he had understood that the dominant purpose of any savings roadmap was ultimately its submission to the Expenditure Review Committee of Cabinet for its consideration of the progress of reforms, whether they were being achieved and, if not, considering what action to take to ensure that savings targets allocated could still be achieved with the necessary timeframe. Consistently with that belief, FEO had from its commencement in 2011 taken steps to ensure that all information held is managed as Cabinet-in-Confidence documents, with all Roadmaps dealt with appropriately and securely 26. The fact that for some Roadmaps only a summary of information contained in them is submitted to ERC, or in other cases together with more detailed information, did not alter the fact that, in any case, the dominant purpose for preparing any Roadmap was submission of the information to ERC. The fact that some of the information is not actually submitted to ERC did not alter the fact that the dominant purpose for preparing the Roadmap was submission of any information contained in it to the Cabinet committee for its consideration. (The applicant objected to this evidence on the basis that it constituted comment, but it was admitted on the basis that the objection related to weight.)
6. And further at [29] to [30]: 29. In cross-examination Mr Cheney agreed that it was he who had decided not to release the 30 Roadmaps. In response to Mr Izzo's questions the witness explained the process for preparing and approving the Roadmaps, stating that agencies had been given the task of preparing them in a decision in August 2011 to effectuate the role given to FEO. The new government had written to all directors-general declaring that there was a new financial responsibility regime and that directors-general (now called secretaries) would need to administer their budgets. This method would help them to do that and would hold the clusters accountable. The Roadmaps were part of that method. They had a rigorous basis, examining key aspects of progress and asking program owners to explain where they were going. About 50 percent of initiatives failed the rigour test at the first attempt. FEO would then suggest amendments to the agencies so that they could be confident of success. The signature on the Roadmap indicated that it had passed the rigour test. The witness agreed that the Roadmaps were not marked "Cabinet-in-Confidence" but said that was typical of Roadmaps. 30. On the basis of his experience, Mr Cheney thought that if the Roadmaps were released to the public, their preparation and submission would be delayed as special care would be taken to make them appear appropriate. As it is, some agencies submit internal budget control programs as Roadmaps, but these are less rigorous. The Roadmaps in issue in this case do not include any internal budget control plans of that nature. Release of the information sought would have a detrimental impact as agencies might not supply such detailed information. They would complete the templates, though perhaps in less detail, and some categories might not be complete. Less detailed information would not meet the rigour test and it would be necessary to seek amendments so that it did.
7. The Tribunal referred to the submissions of the appellant at [33] to [40] and of both parties in its consideration, which commenced at [48]. Relevantly, the Tribunal explored the alternative constructions of Sch 1, cl 2(1)(b) and focussed on "information", essentially because both parties made extensive submissions on this, noting as follows: 50. The second condition for the operation of the provision is that the information be "contained in a document". In this case, the information is contained in the Roadmaps, and also in the quarterly whole-of-government records submitted by the Treasury to ERC, and in the quarterly reports submitted by clusters to ERC. The two kinds of quarterly reports contain information from the Roadmaps after that information has been introduced into the reports by FEO or by the relevant cluster. 51. The third condition for the operation of cl 2(1)(b) is that the relevant documents, in this instance the Roadmaps, and by extension the two sets of quarterly reports, are prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration. All parties in this case accept that the words "dominant purpose" have the same meaning as in ss 118 and 119 of the Evidence Act 1995. The purpose in question must be "causative in the sense that, but for its presence " the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11 [13], [24].
8. The findings of the Tribunal appear at [57] and [61], which are extracted in full, together with the introductory and adjacent paragraphs to provide context, as follows: 53. The applicant challenges that line of reasoning on two grounds. First, he disputes that the information is "contained in a document". It is insufficient for the purposes of cl 2(1)(b), he argues, that the information in the Roadmaps is incorporated, not verbatim, but by way of extract or summary into separate documents (the quarterly reports). The Roadmaps themselves would have to be prepared for the dominant purpose of submission to Cabinet. In support of that proposition he relies on Asher, National Parks Association and a number of similar cases. The reference to "information" in the introductory language (the "chapeau") to cl 2(1), in the applicant's submission, is a matter of relatively little moment. 54. The introduction of the word "information" marked a change from the orientation of the Freedom of Information Act 1989, in which the focus was documents, to a new approach of creating a right of access to information. That basic change was recognized in Richards v Commissioner, Department of Corrective Services) [2011] NSWADT 98, [40]: "It is important to note that the definitions of "government information"...operate[s] on information alone, not, as was the case under the [ FoI Act], with respect to documents". The applicant's position is that information falls within Cabinet information principles only if it is initially recorded in a document that itself was prepared for the purpose of being submitted to Cabinet. As the respondent put it, this amounts to saying that information is forever infected by the purpose of the preparation of the document in which it was initially recorded. The essential feature is that the information in the Roadmaps is the same as the information contained in the quarterly reports. Differences in expression or form do not mean that what is being communicated is no longer the same knowledge concerning the same fact, subject matter or event. That would be to allow form to prevail over substance. 55. The cases cited by the applicant on this point are thus of limited assistance, as they interpret the document-based earlier New South Wales legislation or similarly structured statutes from other jurisdictions. The changed wording of cl 2(1) cannot be treated as a mere stylistic variation. It is repeated several times in s 3, the object section of the Act. Such changes in an Act are "essential features of its legislative design": Baini v R [2012] HCA 59, at [45] per Gageler J. 56. The then Premier, the Hon. Nathan Rees MLA, in his second reading speech to the Legislative Assembly on the GIPA Bill, made it clear that the new legislation was comprehensively adopting most of the recommendations in a special report to Parliament by the New South Wales Ombudsman under s 31(1) of the Ombudsman Act 1974 on the subject of freedom of information legislation and its reform. The report noted that access schemes in all Australian jurisdictions, the United States and the United Kingdom were about documents. The Ombudsman's community consultations had revealed a widespread view that the legislation needed updating to reflect the increasing use of electronic rather than paper-based record management systems. The report even considered, but rejected, the New Zealand approach of covering information in the minds of public officials that may not have been recorded at all (New South Wales Ombudsman, Opening up Government: Review of the Freedom of Information that Act 1989-- a special report to Parliament under s 31 of the Ombudsman Act 1974 (February 2009), Chapter 4). The report cannot, of course, be used to qualify the language of the legislation, but in this case it confirms the proper interpretation of the Act and emphasizes that the change of focus was intentional and its implications understood. 57. I am satisfied that the information in the Roadmaps is contained in documents prepared for the dominant purpose of submission to Cabinet. Mr Cheney's evidence was that "summary information about every Roadmap is submitted to the Expenditure Review Committee on a quarterly basis" and that information from the Roadmaps is incorporated in attachments to cluster quarterly reports, which are submitted to ERC. Every Roadmap is prepared on the same basis. It is not essential to identify whether a particular document is the source of information contained in documents prepared for Cabinet. The question is whether information is contained in a document prepared for submission to Cabinet, not whether there is a relationship of source and end-product between the two documents 58. Not for publication. 59. As Mr Izzo pointed out, the Roadmaps were not marked "Cabinet-in-Confidence", but that is not decisive, as Vincent JA (Buchanan and Redlich JJA agreeing) noted in Asher (at [19], n 12). Mr Cheney in his oral evidence stated that Roadmaps and the information contained in them were in fact consistently handled on a Cabinet confidentiality basis. 60. Secondly, the applicant argued that the dominant purpose element itself was not satisfied. The dominant purpose is to be ascertained as at the time the information is brought into existence: National Parks Association at [29]. The applicant contended that that the dominant purpose here was to enable FEO to monitor the implementation of savings reforms by agencies. FEO then uses the information in the Roadmaps to provide monthly reports to clusters to facilitate discussion that their senior officers and program management have with Treasury resource allocation staff and FEO about their progress. 61. The evidence, including that set out above, shows, however, that that the Roadmaps are prepared for the dominant purpose of submission to Cabinet. Mr Cheney stated that the documents form part of the system within the New South Wales government whereby agency spending and savings are monitored by the Cabinet committee, ERC. The Roadmaps may serve other management purposes as well, but their primary function is as part of a continuous process of supervision, advice and consultation involving the Cabinet committee, FEO and the agencies. 62. There could hardly be a witness better qualified than Mr Cheney, the foundation director of FEO who has supervised the RPM system, including the Roadmaps, from the outset, to give evidence about the Roadmaps' dominant purpose. This places the respondents' case in a stronger position than, for example, the respondent department in Fisse. There, the evidence of dominant purpose was given by an assistant Cabinet secretary with no direct knowledge of the creation of the document, and who had to rely on her experience of usual practice. No- one from the working party that produced the report or the executive summary was called to give evidence. A majority of the Full Court held, however, that the respondent had discharged the burden of proving dominant purpose.
9. In conclusion, the Tribunal found at [72]: I therefore find that the respondents have discharged the onus of proving on the balance of probabilities that the respondents had reasonable grounds for their claim that the Roadmaps (under cl 2(1)(b)) and the allocation letter attachments (under cl 2 (1)(b) and 2(1)(d)) are Cabinet information and the subject of an overriding public interest against disclosure of information.
10. The appellant submitted that the findings of the Tribunal are unclear but it appeared from [54] and [57] that the Tribunal's findings were that the Roadmaps satisfied cl 2(1)(b) because the quarterly reports, which summarised or incorporated information from the Roadmaps, were prepared for the dominant purpose of submission to Cabinet. There is no dispute that the quarterly reports were prepared for the dominant purpose of submission to ERC. However, was submitted that the Tribunal fell into error by concluding the Roadmaps were also so prepared "when all that happens is that it is prepared for the purpose (which may be accepted to be its dominant purpose) of an extract or summary of the information contained in it being submitted to Cabinet for Cabinet's consideration" (paragraph 19, appellant's submissions 10 October 2014).
11. According to the appellant, the Tribunal misconstrued cl 2(1)(b) by focusing on the information, or an extract or summary, being prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration. Clause 2(1)(b) protects information that is information contained in a document prepared for the dominant purpose of its being submitted to Cabinet [emphasis added]. The appellant submitted that it is clear from cl 2(1)(b) that it is the document, not the information, that must be prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration. Otherwise this would lead to absurd results. The statement made at [61] that the Roadmaps were prepared for the dominant purpose of submission to Cabinet was not a finding to this effect and should be informed by the rest of the paragraph and the findings at [57]. The appellant further submitted that if there was such a finding, it was with without evidentiary foundation and should be rejected.
12. The respondents submitted that the Tribunal made a finding that the Roadmaps were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration and it did not matter that the Roadmaps were not submitted to Cabinet. The respondents rely on the findings of the Tribunal as set out in the first sentence at [61] of the decision. In so far as it is contended by the appellant that the Tribunal's reasons are flawed or ambiguous, the reasons are entitled to a beneficial construction and an appellate body should not conclude that the Tribunal erred in law unless this clearly appears (Wu v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432 at 444; (1995) 130 ALR 367). Moreover, the reasons given by the Tribunal are capable of supporting its finding that the Roadmaps were prepared for the dominant purpose of submission to Cabinet. The evidence relied upon by the Tribunal is set out in the decision and it is clear the Tribunal relied on the evidence of Mr Cheney to make such a finding.
13. It is apparent that the submissions of the parties about the critical findings of the Tribunal are diametrically opposed. It is therefore relevant to examine the evidence before the Tribunal, the submissions of the parties and the findings and reasoning of the Tribunal in relation to the disputed findings.
14. In his affidavit tendered in the proceedings at paragraphs 35 and 36, Mr Cheney deposed as follows: 35. Throughout my time as director of the Fiscal Effectiveness Office, I have understood that the dominant purpose of any savings Roadmap being prepared was ultimately for its submission to the Expenditure Review Committee of Cabinet for its consideration of the progress of reforms, whether they were being achieved, and if not, considering what action to take to ensure the savings targets allocated can still be achieved within the different timeframe necessary. Consistent with that belief, the Office has from its commencement in November 2011 taken steps to ensure that all information held is managed as Cabinet-in-Confidence documents, with all Roadmaps dealt with appropriately and securely. 36. The fact that for some Roadmaps only a summary of the information contained the Roadmap is submitted to the Expenditure Review Committee (Attachment B2 to the Minute) and in other cases where savings plans are at risk more detailed information is also submitted (Attachment B3) does not alter the fact that, in either case, the dominant purpose for which any Roadmap is prepared is for submission of the information to the Expenditure Review Committee. The fact that some of the information is not actually submitted to the Expenditure Review Committee does not alter the fact that the dominant purpose for which the Roadmap is prepared is for submission of any information contained within it to the Expenditure Review Committee for its consideration. [emphasis added]
15. Mr Cheney was cross-examined on his evidence but did not resile from the statements made in paragraphs 35 and 36 of his affidavit.
16. The Tribunal referred to this evidence at [25] and [26]. Moreover, the Tribunal specifically noted Mr Cheney's evidence that he "agreed that the Roadmaps were not marked "Cabinet-in-Confidence" but said that was typical of Roadmaps" at [29]. The Tribunal also referred to Mr Cheney's evidence at [30] about the "special care" that would be taken to make the Roadmaps "appear appropriate" if they were to be released to the public. These references to the evidence of Mr Cheney, together with the reference to the evidence "set out above" in the first sentence of [61] linking the evidence to the finding, make it clear that the Tribunal accepted Mr Cheney's evidence that the Roadmaps were prepared for the dominant purpose for submission to Cabinet for Cabinet's consideration.
17. The appellant submitted that the Tribunal must have mistakenly omitted the words "information in" before "the Roadmaps" in the first sentence of [61] because this sentence would otherwise be inconsistent with [54] and [57] and the balance of [61].
18. We do not accept this submission. The statement contained in the first sentence of [61] is unambiguous and is consistent with the Tribunal's analysis of the evidence of Mr Cheney. The fact the Tribunal also referred to Mr Cheney's evidence in [61] about the broader purpose of the Roadmaps as "part of the system" of government or about the fact that the Roadmaps "may serve other purposes as well" does not challenge the clear meaning of the statement contained in the first sentence. Indeed, when read as a whole, the paragraph supports the respondents' contention because the Tribunal specifically referred to agency spending and savings being monitored by the Cabinet committee and noted that the "primary function" of the Roadmaps is part of a continuous process involving the Cabinet committee.
19. While it is correct that the findings in [54] and [57] refer to the "information" in the Roadmaps, it is clear the Tribunal was addressing the submissions of the parties on this issue. The Tribunal does not refer to the finding in [57] as an "alternative finding" however there is nothing in the Tribunal's reasons to suggest that both findings, namely the finding about the Roadmap in [61] and the finding about the information in the Roadmap, cannot stand together. Whether the finding in [57] would also support a claim under Sch 1, cl 2(1)(b) raises the construction issue which is the subject of dispute between the parties. There is no need to determine this issue if we are satisfied there were reasonable grounds for the first respondent's claim that the Roadmaps were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration.
20. The respondents rely on Wu v Minister for Immigration and Ethnic Affairs. In our view, there is no need to beneficially construe the Tribunal's reasons because the finding that the Roadmaps were prepared for the dominant purpose of submission to Cabinet is clearly expressed in [61]. The suggestion by the appellant that the Tribunal expressly rejected the proposition the Roadmaps themselves were prepared for the dominant purpose of submission to Cabinet is not established by the extract of [54] referred to by the appellant in paragraph 15 of his written submissions on the appeal. There are two reasons for this.
21. First, the Tribunal was responding to submissions made by the appellant in the hearing below about why information falls within the Cabinet information principles only if it is "initially recorded" in a document that was itself prepared for the purposes of being submitted to Cabinet. It was the reference to information being "forever infected" that was rejected by the Tribunal, not the proposition that the Roadmaps were so prepared.
22. Secondly, the reference to the information in the Roadmaps as being the same as the information in the quarterly reports is not inconsistent with a finding that the Roadmaps were prepared for the dominant purpose of submission to Cabinet. At best, it is ambiguous as to what is meant by the reference to the "essential feature" in [54].
23. The appellants submitted that, even if there was a finding about the Roadmaps as opposed to a finding about the information in the Roadmaps, this was an error of law because the finding was not open on the evidence (Australian Broadcasting Tribunal v Bond and ors (1990) 21 ALD 1 and Kostas V HIA Insurance Services Pty Ltd (2010) 241 CLR 390). The respondents accepted this would be an error of law but say that the finding was open based on the evidence of Mr Cheney. Caution should be exercised before inferring an error of law from the approach taken by a tribunal to a question of fact (Minister for Immigration and Ethnic Affairs v Wu (1996) 41 ALD 1).
24. The appellant challenges the characterisation of Mr Cheney's evidence as supporting the proposition that the Roadmaps were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration.
25. First, it is contended that in reading the whole of paras [34] to [36] of his affidavit, it is plain that Mr Cheney is saying no more than that the quarterly reports which are submitted to the Expenditure Review Committee contain summary information about every Roadmap. It is not asserted that any Roadmap itself is submitted to the Expenditure Review Committee. Indeed Mr Cheney states that some information does not go to the Committee.
26. Secondly, the evidence of Mr Cheney about his understanding of the dominant purpose does not advance the respondents' case. His understanding is not an assertion of the fact separate to what is asserted in paras [34] to [36]. It is clear from the surrounding paragraphs that all Mr Cheney means is that the dominant purpose of the preparation of the Roadmaps is for any information contained in them to be submitted to the Expenditure Review Committee and he says this twice in para [36]. In any event, evidence of a witness's understanding is irrelevant and not probative (R v Kamleh (2003) SASC 269; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722)
27. Finally, the reference to Mr Cheney's credibility and qualifications do not advance the matter as he does not say that the Roadmaps themselves were intended to go to the Expenditure Review Committee.
28. We reject these submissions.
29. Mr Cheney's affidavit evidence about the Roadmaps, and in particular paras [35] and [36], explicitly stated that the Roadmaps were prepared for the dominant purpose of submission to the Expenditure Review Committee. The fact Mr Cheney refers to information or a summary of information twice in para [36] does not detract from the force of his explicit statement. It is not inconsistent to say that information or a summary of information in the Roadmaps was submitted to the Expenditure Review Committee or, conversely, that some information from the Roadmaps was not submitted. When read in context, it is clear Mr Cheney was explaining about the importance of the Roadmaps, especially given that information or a summary of information from the Roadmaps was submitted to the Expenditure Review Committee. This is reinforced by the evidence referred to in [30] of the reasons, where Mr Cheney's evidence about the importance of the confidentiality of the Roadmaps is outlined. It is significant to note that Mr Cheney's evidence was not contradicted in cross-examined notwithstanding that the appellant had the opportunity to explore this very issue with Mr Cheney.
30. Mr Cheney's understanding of the dominant purpose of the Roadmaps is probative and relevant because he was the person who made the decision to reject the claim and was the director of the FEO, which was responsible for establishing reporting by government agencies through the Roadmap template and monitoring that reporting. The Roadmaps were developed by BCG in consultation with the FEO (para 7 of the affidavit of Mr Cheney). The reference in Mr Cheney's affidavit to his "understanding" of the dominant purpose of the Roadmaps is imperfect measured against the strict rules of evidence given his affidavit does not set out the factual basis for Mr Cheney's understanding. However, the Tribunal is not bound by the rules of evidence (s 38(2) of the CAT Act). Mr Cheney is not giving opinion evidence but rather evidence about the genesis and dominant purpose of the Roadmaps based on his experience as the foundation director of the FEO and his involvement with the creation of the Roadmaps. It is clear that this was the basis for his understanding. The Tribunal refers to this evidence at [62] of the reasons and was not in error in giving weight to Mr Cheney's evidence.
31. In summary, we are satisfied it was open to the Tribunal to make a finding that the Roadmaps were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration and that the Tribunal made such a finding. There is no dispute that Sch 1, cl 2(1)(b) would apply to the Roadmaps in such circumstances. Accordingly, no error of law arises.
32. If the Tribunal concluded that the presumption in cl 2(1)(b) was also enlivened because information or a summary of information in the Roadmaps, rather than the Roadmaps themselves, was prepared for the dominant purpose of submission to Cabinet, this would be in error. Our conclusions about the proper construction of cl 2(1)(b) are outlined below. However, we have not identified such a finding in the reasons, nor could the appellant identify such a finding. The appellant submitted this could be inferred from the Tribunal's reasoning and findings about the information in the Roadmaps. As already noted, the Tribunal was merely responding to submissions made by both parties about the relevance of "information" notwithstanding the primary submission made by the respondents at first instance that the Roadmaps themselves were prepared for the dominant purpose of submission to Cabinet for Cabinet's consideration.
33. The respondents submitted, both in this appeal and in the Tribunal below, that the alternative finding would also fall within cl 2(1)(b). We do not accept this submission but this does not affect the outcome of the appeal or our conclusion that the appeal must fail. It is sufficient that we are satisfied, based on the Tribunal's reasons and the evidence before the Tribunal, that there were reasonable grounds for the respondents' claim that the Roadmaps were Cabinet information within the meaning in Sch 1 cl 2(1)(b) of the GIPA Act.

Construction of the conclusive presumption in Schedule 1, clause 2(1)(b)

1. Because we accept the respondents' submissions on the findings about the Roadmaps for the reasons previously outlined, it is not necessary to determine the controversy between the appellant and the respondents on the construction of cl 2(1)(b). However, for completeness and having regard to the detailed submissions made by the parties on this issue, we have given this matter consideration.
2. We are persuaded by the construction contended by the appellant. In our view, it is clear from the language of cl 2(1)(b) that the information protected is the information contained in "a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration" [emphasis added]. As stated by the appellant at para [20] of his written submissions in the appeal, The word "its" can only refer to the "document". Therefore, for clause 2(1)(b) to operate, the document containing the information must have been submitted or prepared for submission to Cabinet. In turn, the "information" referred to in the chapeau must be contained within that document. Had the legislature intended the protection in clause 2 to cover information appearing in documents other than those referred to in clauses 2(1)(a)-(e), it would have been expected that the clause would refer (relevantly) to "information prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration".
3. We agree with this submission and reasoning.
4. The respondents contended, and we agree, that the accepted approach to statutory construction begins and ends with the text of the Act. We however come to a different conclusion about the construction of Sch 1, cl 2(1)(b) to that contended by the respondents. The respondents noted that there had been a change under the GIPA Act regime to focus on information rather than documents. They contended that to give this change "work to do" the conclusive presumption must focus in the information being prepared for the dominant purpose of submission to Cabinet. However, this change when properly understood, was intended to focus on the broad range of information that may be available, such as electronic or digital data, not just documents. In our view, the clear meaning of cl 2(1)(b) is that the information is contained in a document prepared for the purpose of the document being submitted to Cabinet, not the information being submitted to Cabinet [emphasis added]. To interpret cl 2(1)(b) otherwise would be to strain the ordinary meaning of the phrase.

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

Amendments 01 April 2015 - reference hyperlinks removed 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: 01 April 2015