Else v Ministry of Health

The issues

1. The issues which arise for determination in this application are: 1. whether there is an overriding public interest consideration against disclosure of the redacted information in the Operating Procedures; and 2. whether dealing with item (2) of Ms Else's access request - documents that describe decisions to allow individuals to quarantine at a place other than a designated quarantine hotel - would require an unreasonable and substantial diversion of the resources of the Ministry of Health.

The GIPA Act

1. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public a legally enforceable right to be provided with access to government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure (s 9(1)).

Overriding public interest against disclosure

1. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure" (s 5 of the GIPA Act). Under the GIPA Act a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an "overriding public interest against disclosure" (s 9). There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. That Schedule is not relevant to the current application, although it was relevant to the privileged information to which Ms Else no longer seeks access.
2. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act. The Ministry of Health submits that there is an overriding public interest against disclosure in circumstances where it could reasonably be expected disclosure would:

• reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the Ministry of Health (s 14 Table, cl 1(e)); and
• prejudice the effective exercise by the Ministry of Health of its functions (s 14 Table, cl 1(f)).

1. The decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
2. Section 55(1) of the GIPA Act provides that, in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account the following "personal factors of the application": (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant.
3. In this matter no personal factors have been raised or appear relevant.
4. Under s 58 of the GIPA Act an agency may refuse to provide access to information because there is an overriding public interest against disclosure. The agency may also decide to refuse to deal with the application in certain circumstances.

Refuse to deal

1. In accordance with s 60 of the GIPA Act an agency can decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(a) is relevant to this application and provides that an agency may refuse to deal with an access application where dealing with the application would require an unreasonable and substantial diversion of the agency's resources.
2. Sub-sections 60(3A) and (3B) provide: (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law.
3. The matters which may be considered under s 60(3A) are non-exhaustive.

Requests for exemption from hotel quarantine

1. At the time Ms Else's access application was dealt with, two public health orders - Public Health (COVID-19 Air Transportation Quarantine) Order 2021 and Public Health (COVID-19 Maritime Quarantine) Order 2021 - required persons entering NSW from a country other than Australia or New Zealand to enter a quarantine facility or medical facility for a prescribed "quarantine period." A number of hotels were designated quarantine facilities for this purpose. The Minister for Health had the power to grant exemptions from the Public Health Orders, including the quarantine requirements.
2. Joanne Edwards, Deputy Controller, State Health Emergency Operations Centre (SHEOC), who at the time of the Tribunal hearing was responsible for, among other things, hotel quarantine, states that the Minister had delegated authority to grant exemptions under the Public Health Orders to authorised medical practitioners within the Ministry of Health. She further states that the SHEOC Exemptions Unit manages the processing of applications for exemptions. Each individual seeking an exemption must make an application. Exemptions may be subject to conditions if granted.
3. Ms Edwards states that, where an exemption is granted, the applicant is notified of the exemption and any applicable conditions by email. If a request for an exemption is declined, the reasoning will be provided in notification of the decision to the applicant. Ms Edwards states that exemptions are only considered where there are strong medical, health or compassionate grounds, or where the person is transiting out of NSW to an international destination. Exemptions can also be granted for a limited period, for example, to attend a funeral or to visit a family member who is critically ill.
4. In addition to arrangements for people to seek exemptions from quarantine, there is provision for individuals or those travelling in a group to seek approval to quarantine in alternative locations to approved quarantine facilities. Applications to undergo quarantine in an alternative place are made to and determined by the Commissioner of Police.

Access to Operating Procedures Document

1. The Operating Procedures are essentially guidance for decision makers dealing with requests for exemption from mandatory hotel quarantine for arrivals into NSW. A substantial portion of the document has been released to Ms Else, but many details have been redacted.
2. Ms Edwards states that the document is marked as being draft as it is a live document that is constantly updated to reflect the changing conditions and knowledge surrounding the COVID-19 pandemic. She states that the document is updated whenever there is a variation to or amendment of the Public Health Orders. It is also updated to reflect changes to advice or knowledge regarding the virus which may impact decision-making, for example, when new variants emerge or research findings become available or new recommendations are issued from the Australian Health Protection Principal Committee. She states that changes to the procedures may also be made to reflect changing assessments of risk associated with various situations. Ms Edwards said that, by the time Ms Else's access application was received, the document had been updated 10 times.
3. Ms Edwards states that the Operating Procedures are maintained confidentially and have not been published or disseminated outside NSW Health. She states that this reflects the fact that the procedures have been developed organically over time in response to new developments and assessments of risk. She has concerns about releasing the Operating Procedures into the public domain, given the complexity of the decision-making process with which it deals, and the constantly evolving scenarios which it addresses.
4. Ms Edwards states that she has concerns about releasing a historical version of the Operating Procedures as there are likely to have been significant changes made in the intervening period. She states that a historical version is unlikely to give a meaningful insight into the current decision-making process with respect to the consideration and granting of exemptions and she is concerned that confusion would likely arise which could undermine management of the exemption process under the Public Health Orders. Ms Else points out, and the Ministry for Health concedes, that s 15(d) of the GIPA Act states that the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
5. Ms Edwards states that releasing the current version of the document has the potential to prejudice the processing of exemption requests currently being made. She states that releasing detailed descriptions of the types of matters taken into consideration, and the circumstances in which an exemption may be granted, may lead applicants to attempt to tailor their applications so as to try and maximise the possibility of obtaining an exemption. She states that, in any event, the document is likely to become out of date very quickly. Ms Edwards is also concerned that people may develop unrealistic expectations about whether or not an application for an exemption will be approved if the Operating Procedures document was released. She states that due to the changing circumstances and exemption that may have been approved some months ago may not be approved today. People applying for exemptions may therefore feel they have been treated unfairly.

Public interest considerations in favour of disclosure

1. There is a general presumption in favour of disclosure of government information set out in s 12(1) of the GIPA Act. The public interest considerations in favour of disclosure are, of course, not limited. The Ministry of Health submits, and I agree, that there is a public interest in disclosing information that 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. There is no doubt that matters associated with the COVID-19 pandemic and hotel quarantine are matters of public importance. Disclosure could also reasonably be expected to inform the public about the operations of the Ministry of Health.

Public interest considerations against disclosure

1. As noted above, the Ministry of Health refers to the public interest considerations set out in clauses 1(e) and (f) of the Table in s 14.

Could reasonably be expected to

1. Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
2. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... 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 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.
3. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
4. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
5. Several of the public interest considerations against disclosure require that there be some relevant "prejudice" to the agency. "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
6. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [59]: "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."
7. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Commissioner (s 105).

Clause 1(e) - reveal a deliberation in such a way as to prejudice a deliberative process

1. Clause 1(e) of the Table in s 14 provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of an agency. There are thus two elements to the cl 1(e) public interest consideration against disclosure. Firstly, the information must reveal a deliberation or consultation, or an opinion, advice, or recommendation given, and second, disclosing the information can reasonably be expected to prejudice the deliberative processes of the agency: Watt v Department of Planning and Environment [2016] NSWCATAD 42.
2. The Ministry for Health submits that the Operating Procedures document reveals the deliberative framework for the consideration of exemption applications and that its disclosure would reasonably be expected to prejudice the deliberative processes of the SHEOC in considering and determining applications for exemption from the Public Health Orders quarantine requirements.
3. A relevant connection must be established between the deliberation as contained in the withheld information and the "deliberative processes": Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 at [57] - [58]. In Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588, at [58], the Administrative Appeals Tribunal made the following observations in regard to the term "deliberative process" as contained in s 36(1) of the Freedom of Information Act 1982 (Cth) as follows: 58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. …
4. Re Waterford has been applied by the Tribunal in many cases: see, for example, Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at [66]; Imielska v NSW Land and Housing Corporation [2021] NSWCATAD 74.
5. Ms Else states that a document containing a set of criteria for eligibility, risk assessment guidelines and similar material does not reveal any of the things identified in cl 1(e). However, when reading the information redacted from the Operating Procedures as provided to Ms Else, it is apparent that the document is an internal working document, which I accept is not disseminated outside the agency, and the information contained in the redacted portions reveals the deliberative framework for the assessment of applications for exemption from hotel quarantine. This information is not simply assessment criteria but is much more nuanced and directed towards complex assessments involving serious public health issues.
6. Ms Else states that the Ministry for Health has not provided any evidence that applicants would tailor their applications to enhance their chances of success if the whole document was released. However, the test in cl 1(e) is not whether there is evidence that a particular person would act in a particular way, but whether disclosure "could reasonably be expected" to have a particular effect. I am satisfied that, if the redacted information was released, applicants for exemption from hotel quarantine may attempt to tailor their applications to increase the likelihood of exemptions being granted. This runs the risk that the decision-making process would be undermined and not based upon reliable information. In this area decisions need to be based upon honest and reliable information as part of managing the risks associated with COVID-19.
7. While changes have recently been made to the requirements for international arrivals and hotel quarantine, quarantine is still part of the response to the ongoing pandemic. I also note that dealing with the pandemic is a dynamic situation and measures to deal with it can alter over time. I am satisfied that disclosure of the redacted portions of the Operating Procedures could reasonably be expected to prejudice the ongoing deliberative processes of the SHEOC within the Ministry of Health in considering and determining applications for exemption from quarantine requirements.
8. This public interest consideration against disclosure should be given significant weight.

Clause 1(f) - prejudice to the effective exercise of functions

1. Clause 1(f) provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions. The Ministry of Health submits that, for the reasons outlined above in relation to cl 1(e), disclosure of the operating procedures document would prejudice the management by SHEOC of the exemption application process. I agree.
2. As noted above, the quarantine system had formed an integral part of the management of COVID-19. It is important that the integrity of such measures is not undermined and I therefore accord this consideration significant weight.

Is there an overriding public interest against disclosure of the information?

1. There is no doubt that there is a legitimate interest in the disclosure of information concerning exemptions from hotel quarantine. As noted above, hotel quarantine has formed, and still forms, an important aspect of managing COVID-19 in NSW. It is also one to which some controversy has been attached. It is important, however, that the integrity of public health measures be maintained, including in relation to the decisions concerning the exemption from quarantine for certain persons.
2. Overall, I am satisfied that in this matter, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of the disclosure and that the redacted portions of the Operating Procedures should not be released.

Refusal to deal

1. Ms Else seeks access to documents that describe decisions to allow international arrivals to quarantine at a place other than a designated quarantine hotel. As noted above, that aspect of the application was refused on the basis that dealing with this part of the application would require an unreasonable and substantial diversion of resources.
2. The factors in s 60(3A) and (3B) draw on two previous cases which dealt with the factors to be considered in an assessment of whether an application would require an unreasonable and substantial diversion of an agency's resources.
3. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] O'Connor DCJ stated that the matters relevant to such an assessment include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; … (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort … (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as [to] the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency … (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
4. That case dealt with the former freedom of information legislation applicable in NSW prior to the introduction of the GIPA Act. In Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 the Tribunal confirmed that these matters remain relevant to an assessment under s 60(1)(a) of the GIPA Act, although it also found that the changed context of the GIPA Act, which requires that discretions under it are to be exercised so as to enhance its objects (s 3(2)(b)), could result in "differing weight and importance being accorded to the Cianfrano factors" (at [26]). Colefax also identified that the fact that an access applicant is seeking their personal information is a relevant factor in the determination (at [27]).
5. Sub-sections 60(3A) and (3B) commenced in November 2018 and have the effect of codifying some of the factors set out in Cianfranco and Colefax. Those decisions, however, remain relevant when considering s 60 (Ruyters v Commissioner of Police [2020] NSWCATAD 223). Sub-sections 60(3A) and (3B) require that, in deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, any consideration in s 60(3A) - considerations which broadly relate to the burden on an agency of processing the request - must, on balance, outweigh the general public interest in favour of disclosure and the demonstrable importance of the information to the applicant (see Ruyters for a discussion of relevant principles).
6. The tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency's resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources.
7. Ms Edwards states that originally, applications for exemptions to quarantine were dealt with manually and records maintained in Excel spreadsheets. In order to manage the process more effectively, a database was established and provision made for applications to be made online. Ms Edwards states that the database went live in June 2020 and contains all exemption applications made to NSW Health since that time. She estimated that, at the time of the hearing that database contained records of some 39,000 applications for exemptions that had been processed. I note that Ms Else is not seeking access to the records contained in the original Excel spreadsheet.
8. Ms Edwards states that it is possible to apply some limited filtering to the data in the database to identify, for example, those circumstances in which exemptions have been granted. She states that the capacity to filter the data further is limited due to the complexity of the underlying information. She estimates that there are about 5,100 records which could be filtered to identify where an exemption had been granted. She states that each of these records include personal information, often health information, relating to the applicant and to persons associated with the applicant. The database also stores supporting information provided with an application for exemption, which may include medical certificates, doctors letters, medical reports including psychiatric reports, police reports, bereavement notifications, self-isolation plans, flight itineraries, passports and other official documentation.
9. Ms Edwards states that the written records of exemptions granted and emails to applicants notifying them of the exemption and its conditions would also be information responsive to Ms Else's application. She states that these documents are saved on a document management system called "Content Manager".
10. Ms Edwards estimates that it would take an officer with detailed knowledge of the exemptions process and the underlying data about 20 minutes to collate information from the database, identify each written document in Content Manager that is responsive to Ms Else's application, review the documents and redact all personal information in each document. She estimates that this would take approximately 1,700 hours in relation to the identified 5,100 exemptions.
11. Ms Edwards states that generally exemption applications are considered by individual delegates of the Minister. Where an application requires further and more complex consideration, however, the application can be presented to a panel of authorised medical practitioners to determine a decision. In addition to the above records, since November 2020, the decision outcomes as determined by the panel are recorded and stored in MSTeams. These records, which also contain a large amount of personal and health information, would also need to be redacted in order to respond to the application. Ms Edwards advises that there are approximately 664 such records that would need to be reviewed.
12. Ms Edwards states that identifying and collating information in order to respond to this part of Ms Else's application would need to be undertaken by an officer or officers of the SHEOC Exemptions Unit which currently has 30.2 FTE staff.
13. Ms Else questions whether, with the use of appropriate search tools, the time taken to find decisions responsive to her request could be much less than estimated by Ms Edwards. Ms Else has expertise in database management systems and is of the opinion that the scope of her request could be narrowed such that only decisions containing one or more of the following words would need to be considered: home, residence, unit, address and house.
14. Ms Edwards reiterated at the hearing that there are limited search functions in the database itself. She said that each record has an extensive amount of information spread throughout it with mandatory fields and a lot of free text. Ms Edwards stated that she did not believe that available searches would be able to identify where exemptions had been granted for the total period of 14 days.

The s 60(3A) factors

1. It is clear from Ms Edwards's evidence that there are a substantial number of records in the database where exemptions were granted - some 5,100. In relation to these decisions, documents stored in Content Manager would also need to be reviewed. There are an additional 664 records of decisions made by the Medical Advisory Panel. It is therefore apparent that a substantial number of records would need to be reviewed.
2. Ms Else has helpfully sought to provide some search parameters which could be used to facilitate searches of the volume of material. She was critical of the fact that the Ministry of Health had not sought to provide any evidence from someone with expertise in database management who could add their expertise to the evidence given by Ms Edwards. While it is possible that certain searches or search terms could be used to speed up the identification of relevant records within the scope of the request, I accept Ms Edwards's evidence that each record contains an extensive amount of information spread throughout the record, much of which is free text.
3. I also accept that dealing with the request would involve a substantial amount of time. Ms Else may be right that this could be reduced from the 1,700 hours estimated by Ms Edwards. However, significant time would be involved in assessing each record and removing the personal and health information from each record. Ms Edwards states that the Exemptions Unit has 30.2 FTE. It is clear that the volume of records concerned would involve the diversion of staff to the task for a substantial period of time.
4. The Tribunal has found in the past in cases such as Loussikian v University of Sydney [2018] NSWCATAD 140 at [50] and Hanna v NSW Ministry of Health [2019] NSWCATAD 21 at [41] that it is a matter for an agency to determine what resources it makes available to process GIPA applications and whether or not the agency is large and well-endowed is not a relevant consideration in determining whether dealing with an application would unreasonably and substantially divert resources. As noted in the submissions of the Ministry for Health, the agency is continuing to deal with a public health response to the pandemic. It is unlikely, therefore, to devote substantial resources to dealing with GIPA applications.
5. It is acknowledged that no attempt was made to ascertain whether Ms Else's request could be refined to reduce the resources required to deal with it. Ms Else, as set out above, has offered some search terms which might assist. She still seeks, however, all information covered by her original request.

The s 60(3B) factors

1. As has been previously stated, there is no doubt that there is a general public interest in disclosure of the information sought. As to the other factor set out in s 60(3B) that the Tribunal is to consider the demonstrable importance of the information to the applicant, Ms Else has not provided any information relevant to this factor.

Balancing

1. I am satisfied that dealing with the application would require an unreasonable and substantial diversion of the agency's resources. I am further satisfied there is a general public interest in favour of the disclosure of government information. Ms Else has, however, not put forward anything to establish the demonstrable importance of the information to her. I am therefore satisfied that, having regard to the volume of the information involved, the time and resources needed to deal adequately with the request and other relevant matters referred to above, that these matters outweigh the matters referred to in s 60(3B).
2. I am therefore satisfied that dealing with the application would require an unreasonable and substantial diversion of the resources of the Ministry of Health.

Orders 1. The Tribunal notes that the Operating Procedures document has been released to the applicant with redactions. 2. The decision of the respondent is otherwise affirmed.

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 December 2021