Fire Brigade Employees Union v Fire and Rescue New South Wales

Introduction

1. The applicant in these proceedings is the Fire Brigade Employees Union (FBEU). In October 2022, the FBEU sought access to documents from the respondent, Fire and Rescue NSW (FRNSW), under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
2. Five documents were identified as coming within the scope of the request. In respect to each of those documents, the FBEU was refused access. Consequently, the FBEU has sought a review of the decision to refuse access to that material.

The request

1. The FBEU's GIPA Act application (Application) was originally made in the following terms: We kindly request confirmation as to whether any member of the FRNSW Executive Leadership Team has [sought], accepted or been given Frequent Flyer Points from any airline in relation to official travel in the last 12 months and the full details of those incidents. We also request the full details and findings of any and all investigations into any members of the Executive Leadership Team in relation to Frequent Flyer Point matters or any other actual or alleged travel policy breaches. This includes disclosing whether there are currently any investigations open.
2. In the Application, the FBEU sought information about events between 1 October 2021 and 1 October 2022.
3. After some clarification by FRNSW of its terms, the FBEU's request arising from the Application (Request) was described for: All internal and external correspondence and investigation material that concerned: the FRNSW's Executive Leadership Team; and compliance with identified government travel policies and procedures; and relating to "Frequent Flyer Points from any airline in relation to official travel" or "FRNSW-related travel"; and where the matters identified above occurred between 1 October 2021 and 1 October 2022.

The decision under review

1. On 14 November 2022, a delegate of FRNSW determined the Application (Decision). In the Decision, FRNSW identified five documents said to come within the scope of this request.
2. In making the Decision, FRNSW considered that the public interest considerations set out in the GIPA Act, s 12 were "strongly in favour of disclosure". However, FRNSW also determined that public interest considerations against disclosure under the GIPA Act, s 14 (2), cll 1 (e), (f) and (h), and cll 3(a) and (e) in the Table (Table) outweighed the considerations in favour of disclosure. Consequently, FRNSW declined to release any of the material it had identified as within the scope of the Request.
3. At the hearing and in its written submissions, FRNSW expressly abandoned any reliance on the public interest considerations against disclosure described in cll 1(e), 1(f) and 1(h) and 3(a) of the Table. That submission was, with respect, properly made because, at the date of the Decision, those considerations had been relied upon because the information sought concerned a "matter", being an investigation, that was yet to be finalised. At the date of the hearing, the "matter" was finalised and accordingly, those considerations fell away. The hearing proceeded on the basis that FRNSW relied exclusively on cl 3(e) of the Table as being the only relevant public interest consideration against disclosure. In written submissions, FRNSW referred to that part of the Decision considering cl 3(e) of the Table in the following terms: FRNSW have determined that … allegations outlined in the request for information are both unsubstantiated and defamatory and that the release of information regarding the details of any investigation into those allegations would be likely to reveal the nature of those allegations.
4. Accordingly, FRNSW contended at hearing that the consideration against disclosure described in cl 3(e) of the Table alone outweighed the public interest considerations in favour of disclosure and that the five documents it had identified as coming within the scope of the Request should not be released on that basis.
5. Further, at the hearing, FRNSW also contended that the first of the documents originally identified in the Decision was outside the scope of the request. I will deal with this issue separately below.

Issues

1. The principal issue to be determined by the Tribunal was whether the five documents identified in the Decision should be disclosed to the FBEU or whether, having regard to public interest considerations for and against the release of that information, the material should not be disclosed or accessed.
2. The parties submitted that the question to be determined was whether the disclosure of the material in the five documents could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory as provided in cl 3(e) of the Table. However, that consideration does not give rise to a conclusive presumption against disclosure; the Tribunal must consider whether the existence of that consideration outweighs the public interest considerations in favour of disclosure.
3. For the reasons set out below, the Tribunal has determined that, though a public interest consideration against disclosure arises with respect to some of the information contained in the five documents, that consideration does not prevail over the public interest considerations in favour of disclosure.
4. In the course of the hearing, FRNSW also raised two evidentiary objections to evidence sought to be tendered by the FBEU; 1. the first concerning the extent to which the Tribunal may have regard to a portion of a transcript of proceedings of a committee of the Legislative Council of the New South Wales Parliament; 2. the second, concerning the extent to which material apparently filed and served in error in proceedings, may be relied upon by an opponent. Each of these matters is addressed below.

Applicant's evidence

1. The FBEU tendered a witness statement of Jonathan Wright. Mr Wright is a senior organiser for the FBEU. Mr Wright's unchallenged evidence was that: 1. He had, on behalf of the FBEU, made the Application and submitted it on about 6 October 2022. 2. At the time of submitting the Application, Mr Wright had an understanding, the circumstances of which he could not recall, that: there had been an exchange of emails between at least two Executive Assistants to the FRNSW Executive Leadership team ('ELT') concerning frequent flyer points obtained by an ELT member during travel. It was assumed that this was work-related travel. 1. His understanding of FRNSW's policy was that FRNSW employees could not accept frequent flyer points. 2. Arising from the "application process", Mr Wright had obtained information that a Deputy Commissioner of FRNSW had taken numerous flights between Sydney and Melbourne at the expense of FRNSW. The spreadsheet tendered together with Mr Wright's witness statement showed that in the period between 7 November 2021 and 14 February 2022, one Deputy Commissioner had travelled about 12 times between Sydney and Melbourne. The Deputy Commissioner had also travelled twice between Melbourne and Adelaide in August 2022, twice between Sydney and Adelaide in October and November 2022 and three times between Sydney and Brisbane in March and July 2022. The Deputy Commissioner also travelled once to the United States of America in April 2022 and one further trip to Canberra, although only an accommodation cost for the Canberra trip was noted. 3. It was Mr Wright's understanding that a further GIPA Act application had not produced any documentation to establish that payment of the Deputy Commissioner's travel between Sydney and Melbourne had been part of an employment contract. In this regard, I note that Mr Wright did not exhibit the further GIPA Act request nor the notice of decision pertaining to that other request. 4. FRNSW had sent two notices of decision on 14 November 2022, the first of which was sent in the morning and described only two documents: the second, sent later that day, contained a schedule describing five documents. Though the FBEU tendered both decisions, it appeared to be uncontroversial that it was the second notice of decision, which is the Decision under review in these proceedings. In any event, the covering email attaching the Decision, which the FBEU also provided with its application for review, explains that the earlier email and notice has been sent in error.

Objections to the Applicant's evidence

1. In proceedings such as these, where the Tribunal is exercising its administrative review jurisdiction pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 30, the Tribunal is not bound by rules of evidence and, subject to the rules of natural justice, may inform itself on any matter in such manner as it thinks fit; Civil and Administrative Tribunal Act, s 38(2). Nonetheless, the rules of evidence can be seen to aid the Tribunal's obligation to afford natural justice (or procedural fairness) to the parties before it.

Objection to material the subject of parliamentary privilege

1. FRNSW objected to two paragraphs of Mr Wright's statement and an excerpt from the transcript of a parliamentary committee, specifically the transcript hearing of the New South Wales Legislative Council Portfolio Committee No. 5 - Regional NSW and Stronger Communities, Examination of Proposed Expenditure for the Portfolio Areas of Emergency Services and Resilience, Flood Recovery, Friday, 2 September 2022 at 42 - 43, on the basis that the material was inadmissible because it was subject to parliamentary privilege.
2. The material was tendered provisionally only, pending the Tribunal's consideration and determination of its admissibility. Such approach is consistent with the approach taken in Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1998) 19 FCR 223; 81 ALR 710 at [231]-[232] and Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86 at [42].
3. The basis of the objection to this material was encapsulated in the following paragraph from the written submissions on behalf of FRNSW: Having regard to the principles summarised above, the evidence in Mr Wright's statement … and … the appendix to that statement are clearly excluded by parliamentary privilege because it comprises transcript recording the "giving of evidence before a House or a committee". The extract of the transcript undoubtedly records a proceeding in a committee of the Legislative Council. In the circumstances, the Tribunal must not allow the applicant to rely on this evidence. In any event, the privileged material does not contain any "allegations" which are the subject of the information that has not been disclosed so as to have already "revealed" the defamatory allegations.
4. The excerpt of the transcript from the parliamentary committee records an exchange between the FBEU's counsel, in his role as a member of the Legislative Council in the New South Wales Parliament, and Commissioner Baxter of FRNSW. The relevant part of the transcript is extracted here: The Hon. ADAM SEARLE: That's okay. I can just ask and put up a flag. Did [the Deputy Commissioner] make 14 trips between Sydney and Melbourne from 22 October last year till February this year? PAUL BAXTER: Yes. I understand that's correct, yes. The Hon. ADAM SEARLE: For what purpose was that? PAUL BAXTER: That was part of [the Deputy Commissioner's] package for relocation from Victoria to New South Wales. I'm of the view that it was completely within policy allowances for a senior staff member transferring interstate. The Hon. ADAM SEARLE: So it was part of [the Deputy Commissioner's] contractual arrangements with the service, and that's all fine. PAUL BAXTER: Correct. Yes.
5. The FBEU tendered the excerpt of the transcript to support the submission that: the information contained in five documents could not be expected to have the effect of revealing false or unsubstantiated allegations that are defamatory, since "such matters have already been publicly "revealed" such that disclose of the documents cannot have the effect of revealing them.'
6. The GIPA Act, Sch 4 provides the following definition of "reveal": reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
7. In the context of considering a conclusive presumption against disclosure provided under the GIPA Act, Sch 4, the Tribunal, in Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at [54]-[72] set out a potted history and state of the law concerning parliamentary privilege from the Bill of Rights 1688 (Imp), Article 9 which has been declared to be in force in New South Wales since 1828 by the Imperial Acts Application Act 1969 (NSW), s 6. Article 9 provides: The freedom of speech and debates or proceedings in Parliament ought not be impeached or questioned in any Court or place out of Parliament.
8. It is clear that even on the narrowest interpretation of parliamentary privilege, the excerpt of a transcript recording the proceedings of a parliamentary committee comes within the definition of proceedings in parliament; R v Murphy (1986) 5 NSWLR 18.
9. The rationale for parliamentary privilege. as provided by Article 9, was described by Lord Browne-Wilkinson in Prebble v Television New Zealand Ltd [1995] 1 AC 321; [1994] 3 All ER 407 at 415 and quoted by Hodgson JA in Stewart v Ronalds (2009) 76 NSWLR 99 at 123 [116] as: … the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect.
10. See further, Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at 444 - 446 per Gaudron, Gummow and Hayne JJ.
11. FRNSW submitted, and I accept, that though the common law applies in respect of parliamentary privilege in NSW, it was instructive to have regard to the prohibitions contained in the Parliamentary Privileges Act 1987 (Cth), s 16(3)(c) which was explained in Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 at [180] where the Full Court of the Federal Court found that: Section 16(3) of the Parliamentary Privileges Act is not confined in its operation to the receipt of evidence. As its text indicates, it extends to submissions and comments for the purpose of relying on the truth of anything forming part of proceedings in Parliament, and drawing, or inviting the drawing of inferences - (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: … (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. Paragraph 79 of the respondents' particulars alleges as the relevant material fact the statements by Mr Hastie MP in the Federal Parliament, but not the underlying facts. Paragraph 80 of the respondents' particulars relies on paragraph 79 in support of the inferences that are alleged therein. In our view, putting aside s 16(3) of the Parliamentary Privileges Act, if the material fact is no more than the fact of Mr Hastie's statements to the Parliament, that fact is not capable of supporting the inferences alleged in paragraph 80, and the primary judge was correct to hold at [103] that there was no properly particularised basis for the serious allegations against the applicant in paragraph 80 of the particulars. That is a sufficient reason to affirm the primary judge's decision to strike out paragraph 79 of the particulars.
12. However, as FRNSW acknowledged, that the transcript is subject to parliamentary privilege does not conclude the matter; the determinative question is the use to which it is intended the tribunal is to put the material: Leyonhjelm v Hanson-Young [2021] FCAFC 22; (2021) 282 FCR 341 at [43]-[44] per Rares J (with whom, on this topic, Wigney and Abraham JJ agreed).
13. There is no restriction upon admission of Hansard or parliamentary records for the purpose of using that material as evidence of what was in fact said in parliament or a committee on a particular day and by a particular person; Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 at 531; Mundey v Askin [1982] 2 NSWLR 369 at [373D-F]; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at 446 [27] per Gaudron, Gummow and Hayne JJ and at 493 [134] per Kirby J, Rann v Olsen [2000] SASC 83; 76 SASR 450, Leyonhjelm v Hanson-Young at [43]-[44] per Rares J, at [229] per Wigney J, and [362]-[372] per Abraham J, and Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 2) [2023] ACTSC 168 at [45]-[46].
14. However, it is equally clear that material the subject of parliamentary privilege cannot be used outside of parliament to draw inferences or conclusions or to impugn the credit of parliamentarians or witnesses; R v Jackson (1987) 8 NSWLR 116 at 119-120, Prebble v Television New Zealand Ltd [1995] 1 AC 321; [1994] 3 All ER 407, Stewart v Ronalds (2009) 76 NSWLR 99, Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632.
15. Having reviewed the authorities above, I am satisfied that the excerpt of the transcript may be tendered in these proceedings only on a limited basis to prove the facts of the words said by Mr Searle and Commissioner Baxter. Other than establishing whether and what words were spoken, the Tribunal may not draw any inference or opinion concerning that material, including whether allegations of a defamatory nature were revealed; Leyonhjelm v Hanson-Young at [47] per Rares J (with whom, on this issue, Wigney and Abraham JJ agreed).
16. In considering the relevance of the material, I have had regard to the fact of the words said in the transcript as extracted in paragraph 20 above. On the basis that the material has been admitted solely to prove the fact of what was said, the transcript material is of limited relevance to the determination of the real issues in these proceedings.

Objection to material said to have been filed in error by FRNSW

1. FRNSW's second objection was to the tender of documents it had filed with the Tribunal and served on the FBEU in these proceedings on 20 February 2022.
2. There were two documents subject to the objection; the first was a copy of the notice of the Decision, and the second was a document dated 3 November 2022, which is described in the covering index as being "internal search correspondence". It is an email exchange between the delegate of FRNSW and an officer from the Professional Services Branch of FRNSW concerning the extent of the search undertaken in answering the GIPA Act request (First Bundle). The First Bundle was the subject of provisional tender pending the Tribunal's consideration of the question of admissibility. The First Bundle contained two documents that were neither tendered nor relied upon by FRNSW in these proceedings. FRNSW instead tendered a second bundle of documents, which it had filed on 4 April 2022 (Second Bundle).
3. At the hearing, counsel for FRNSW objected to the tender of the First Bundle on three grounds: 1. first, that the documents had been filed and served by FRNSW in error; 2. second, and related to the first submission, that the FBEU would be in breach of its ethical obligations if it relied on material that had been disclosed to it in error in those circumstances; and 3. third, that the FBEU would be in breach of the implied undertaking if it sought to rely on that material.
4. As to the first ground of objection, that the First Bundle had been filed "in error"; there was no evidence about the circumstances of why the First Bundle had been filed and why that filing was "in error". Having regard to the Tribunal's file and the record of the directions hearing on that date, I have been unable to discern any notification to the Tribunal of this error before the filing of the FRNSW's submissions in April 2022.
5. As to the second ground of objection; there is no evidence tendered to demonstrate that the documents in the First Bundle were confidential or that any claim for privilege attached to them. Further, as I have concluded immediately above, there was no evidence to demonstrate that the material had, in fact, been filed and served in error. Accordingly, the ground of objection to the tender material from the First Bundle, on the basis that the FBEU was in breach of its ethical obligations akin to the circumstances in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, is rejected.
6. As to the third ground of objection, that the FBEU would be in breach of the implied undertaking; the implied undertaking as classically described in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and explained in Hearne v Street (2008) 235 CLR 125 at 155 [96] and further discussed in Helicopter Aerial Surveys Pty Ltd v Gary Robertson [2015] NSWSC 2104 requires that a party cannot disclose material provided to it by another party in litigation where that material has been provided under compulsion - whether by a rule or order of a court (or, it may be considered, the Tribunal). As counsel for FRNSW submitted, the GIPA Act, s 103 excludes the operation of the Administrative Decisions Review Act 1997 (NSW), s 58 in proceedings for review of a decision of an agency under the GIPA Act. That has the effect that, in proceedings such as these, FRNSW as the respondent agency is not required to file and serve documents of the kind typically featured in administrative review proceedings common to this division of the Tribunal. Since FRNSW was not compelled to file and serve the First Bundle on 20 February 2022, the filing and service of the First Bundle on that date was not compelled by process but was, therefore, voluntary. Further, there is no suggestion by the FRNSW that the FBEU has sought to rely on material with which it has been served in other proceedings. It is without doubt that the First Bundle was filed and served by FRNSW in these proceedings. There is no suggestion that the FBEU obtained this material for any purpose other than these proceedings: Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 38 FCR 217. Accordingly, FRNSW's submission that, by seeking to tender this material, the FBEU was in breach of the implied undertaking must be rejected.
7. Accordingly, the materials tendered by the FBEU from the First Bundle are admitted into evidence, subject only to relevance. The first document in the First Bundle, being the decision, is relevant. The relevant sections of the second document, the email correspondence, is part of the reply from the professional standards area of FRNSW dated 3 November 2022. I have not recorded the entirety of the relevant section consistent with the Tribunal's obligation under the GIPA Act, s 107 (as explained further at paragraph 53 below. The most relevant paragraph of the email begins with the following words: PSB has not commenced any investigations into members of the Executive Leadership Team in relation to Frequent Flyer points matters or any other actual or alleged travel policy breaches. …
8. The email goes on to list five documents, though it is not clear whether these documents correspond to the documents tendered by FRNSW as having been determined to come within the scope of the FBEU's request. The email ends with the following request: Can you please let [a staff member] know what documents you intend to release, prior to responding to the GIPA request (noting the PSB position is that none of these be released), should you determine that we are required to release them.

Findings on the Applicant's evidence

1. There are limited relevant findings that can be made from the evidence tendered by the FBEU. That is a natural consequence of the FBEU's position as an applicant in a GIPA Act review. The FBEU's evidence, particularly Mr Wright's statement, is directed to the question of whether there exist any specific public interest considerations in favour of disclosure.
2. Mr Wright's evidence, as set out at paragraph 15 above, establishes a public interest in understanding whether senior staff in FRNSW are complying to the fullest extent with all relevant guidelines and policies concerning travel and the accumulation and use of frequent flyer points.

The Respondent's Evidence

1. At the hearing, the Respondent tendered a copy of the Decision and its accompanying schedule, which was marked as Exhibit R1. The Respondent tendered the same document in the private session of the hearing, and it was marked as Exhibit R7. Having regard to the fact that the document has no element of confidentiality, I have not imposed any restriction on publication of this document whether marked as Exhibit R1 or R7.
2. The Respondent tendered other material, which was confidential and about which, pursuant to the GIPA Act, s 107, I have made orders restricting the disclosure and publication where necessary.
3. To discharge its onus, FRNSW relied principally, though not exclusively, on the content of the five documents contained in the Decision schedule, which became confidential exhibits in the proceedings.
4. The first five documents tendered confidentially by the FRNSW were the documents identified in the schedule to the Decision. The remaining two documentary exhibits comprised correspondence between FRNSW and the Independent Commission Against Corruption (ICAC), which post-dated the Decision.
5. The index accompanying the filing of FRNSW's confidential materials with the Tribunal, the numbering used in the schedule to the Decision and the exhibit numbering given to each document at the hearing differed. To avoid doubt, the following table of the Respondent's tendered evidence attempts to reconcile the different references: Tribunal Exhibit Decision Schedule Index to FRNSW Evidence FRNSW's Description of the Document R2 1 1 Letter Out - ICAC - Referral Outcome R3 4 2 Email In - ICAC referral R4 5 3 Letter In - ICAC R5 2 4 Memorandum to the Commissioner R6 3 5 Case Note Summary R7 - 6 This is another copy of the Decision and its schedule. R8 - 7 Letter Out - ICAC - Referral Outcome [NOT FOR PUBLICATION] R9 - 8 Letter In - ICAC [NOT FOR PUBLICATION]

Jurisdiction and Onus

1. The Decision was made under the GIPA Act, s 58(1)(d). It is reviewable under the GIPA Act, s 80(1)(d).
2. The FBEU, as the access applicant, was a "person aggrieved" by the Decision and consequently had standing to seek administrative review; GIPA Act, s 100(1).
3. As the respondent agency, FRNSW bears the onus of establishing that the Decision is justified; GIPA Act, s 105(1). A respondent's onus has two elements: first, to establish that the public interest consideration it relies upon applies to each document, and second, to demonstrate that, on balance, considerations against disclosure outweigh the public interest considerations in favour of disclosure: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [50].
4. The role of the Tribunal in hearing the application for review is to decide the correct and preferable decision having regard to the material before it, including relevant factual material and the applicable law: Administrative Decisions Review Act, s 63(1). In YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], the NSW Court of Appeal observed that a tribunal conducting a merits review should determine what "is" the correct and preferable decision, not what "was" correct and preferable at the time when the decision subject to review was made; FRNSW referred the Tribunal in submissions to Mann v Harness Racing NSW [2021] NSWCATAD 330 at [10] to similar effect.
5. In determining an application for review, the Tribunal may affirm, vary, set aside the reviewable decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator: Administrative Decisions Review Act, s 63(3), Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [138].

Public and private sessions of hearing, confidentiality of some aspects of these reasons

1. The hearing of this matter took place over the course of a day. In the course of the hearing, the Tribunal received evidence in open session where all parties attended and in confidential session pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 49, at which representatives of FRNSW appeared, in the absence of the representatives of the FBEU and the public, to tender confidential evidence and make submissions. The Tribunal is required to ensure that it does not, within its reasons for decision or otherwise, disclose any information in respect of which there is an overriding public interest against disclosure; GIPA Act, s 107. The confidential session of the hearing was necessary in furtherance of this requirement. Additionally: 1. the non-confidential parts of these reasons will not refer in any detail to the subject matter of the documents tendered in the confidential session; Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8 at [28]; and 2. in accordance with its obligations under the GIPA Act, s 107(1), the Tribunal has made orders in accordance with the Civil and Administrative Tribunal Act, s 64, restricting access to the transcript of the confidential parts of the hearing to ensure that any information in respect of which there is an overriding public interest against disclosure is not disclosed.

The balancing of matters required under the GIPA Act

1. The determination of whether an overriding public interest against disclosure exists also requires consideration of the matters set out in the GIPA Act, s 15. This includes the fact that disclosure of information might cause embarrassment to a government agency is irrelevant, as is the fact that disclosure of information might be misinterpreted or misunderstood; GIPA Act, s 15(c) and (d). Those principles and their application are clear and do not require further elucidation.
2. The Tribunal is required, in conducting the balancing analysis under GIPA Act, s 13, to have regard to the following matters: 1. the objects of the legislation contained in GIPA Act, s 3; 2. the presumption in favour of disclosure of government information as provided by, in particular, GIPA Act, s 5 and s 12, and that those considerations are to be given significant weight; 3. the considerations in s 14; and 4. to the principles set out in section 15 of the GIPA Act to determine whether there is an overriding public interest against disclosure or whether the presumption in favour of disclosure prevails: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [9]-[18].
3. I have adopted the approach outlined in Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104] in setting out the competing public interest considerations for and against disclosure, attributing weight to each consideration and determining the balance in the light of such weighting.

Public interest considerations in favour of disclosure

1. There exists a general presumption in favour of disclosure of government information; GIPA Act, s 12. Further, there is a presumption in favour of disclosure that prevails unless there is an overriding public interest against disclosure: GIPA Act, s 5.
2. A person who makes a valid application for access to government information has a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure: GIPA Act, s 9(1).
3. The presumptions in the GIPA Act, ss 5 and 12 and the right created in s 9 give effect to the object stated in the GIPA Act, s 3(1)(c), which provides that access to government information should only be restricted where there is an overriding public interest against disclosure.
4. The operation of the GIPA Act, s 5 and s 12, recognises the significance of the presumption in favour of disclosure, which is limited only by express terms. Such consideration should be accorded, therefore, "significant weight" when determining whether access to information should be granted: Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89]; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].
5. The balancing of those considerations should favour disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. Yet the process is not a matter of mere mechanistic tabulation; rather, the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst at [94]; Battin v University of New England [2013] NSWADT 73 at [74]. That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in the GIPA Act, s 15: Searle at [104].
6. In that regard, I note the submission of counsel for FRNSW that the disclosure of defamatory material would not serve the purpose of the GIPA Act, s 12. That submission is not consistent with the principles set out in the GIPA Act, s 15.
7. In the Decision, FRNSW considered that: … disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability, or contribute to positive and informed debate on issues of public importance.
8. The Decision stated that these considerations were "strong" considerations in favour of the release of the five identified documents to the FBEU.
9. The considerations in favour of release set out in the Decision reflect the note to the GIPA Act, s 12(2). That note does not form part of the GIPA Act, nor is it intended to provide a prescriptive list of considerations in favour of disclosure.
10. In addition to the objectives set out in the GIPA Act, s 3, I consider the public interest considerations in favour of disclosure in this case are as follows: 1. the general public interest in favour of disclosure of government information provided under the GIPA Act, ss 5 and 12; 2. the enhancement of government accountability and transparency of the operations of the agency; 3. it may be reasonably expected that the disclosure would increase transparency surrounding, and ensure effective oversight of, the expenditure of public funds; 4. it is in the public interest to promote public confidence in the administration of government that: 1. complaints made against senior government employees are investigated to the extent required to determine the truth or otherwise of the allegations; and 2. such complaints that are found to be baseless are dealt with thoroughly and transparently to remove any doubt or suspicion over the employees who have been subjected to those complaints.
11. I consider that the public interest considerations in favour of disclosure are significant in this case, and I have accorded to them significant weight.

Public interest considerations against disclosure

1. GIPA Act, s 14 sets out the considerations against disclosure; it provides for two classes of public interest considerations against disclosure: 1. a conclusive presumption, in accordance with GIPA Act, s 14(1) and described in GIPA Act, Sch 1; and 2. considerations giving rise to a non-conclusive presumption described in the clauses contained in the Table, which are the only other considerations that may be taken into account when determining whether there exists an overriding public interest against disclosure.
2. With regard to the non-conclusive presumptions, the finding of an "overriding public interest against disclosure" requires a balancing between considerations in favour and against disclosure: GIPA Act, s 13; Flack at [19]; Hurst at [47]. Such a balancing process does not arise with respect to documents over which the conclusive presumption provided under the GIPA Act, s 14(1) has been found to apply.
3. That a matter meets a clause contained in the Table arises does not invariably lead conclusively to a determination of an overriding public disclosure. Instead, the Tribunal is called upon to examine whether the effect, set out in a relevant clause of the Table, is established and then to ask whether the disclosure "could reasonably be expected" to have the specified effect: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [30]. That phrase is to have its ordinary meaning and requires the decision-maker to determine whether it is reasonable to expect that disclosure would have the relevant effect.
4. The word reasonable, in that context, means something that is not irrational, absurd or ridiculous: Searle [68]. Something more than a mere risk or chance is required; there must be real or substantial grounds which are more probable than not: Leech v Sydney Water Corporation [2010] NSWADT 298 at [28], Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36], and the cases there cited.
5. Likewise, whether disclosure could reasonably be expected to have the effect contended for is a question of fact to be established on the balance of probabilities having regard to the evidence before the Tribunal; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42], Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83].
6. The sole non-conclusive presumption against disclosure relied upon by FRNSW was said to arise where information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory; cl 3(e) of the Table.
7. In determining the correct or preferable decision, the Tribunal is not limited to considering only those matters submitted by the parties. Having reviewed the other clauses in the Table, I have nonetheless concluded that consideration described in the cl 3(e) of the Table, as identified by FRNSW, is the relevant non-conclusive consideration. Consequently, I will only address that consideration when considering each of the five documents identified in the Decision.
8. FRNSW did not assert that any of the material identified as coming within the scope of the request was excluded information of a particular agency, in this case, the ICAC, under the GIPA Act, Sch 1, cl 6 and GIPA Act, Sch 2. This was an issue raised by the FBEU in its written submissions. Had FRNSW sought to rely on this conclusive presumption, it would have been required first to ask the agency from which the information had come whether it consented to its disclosure under the GIPA Act, Sch 1, cl 6(2). There was no evidence before the Tribunal about whether this occurred; accordingly and consistent with the approach in Hurst at [53], the Tribunal has been left to conclude that the conclusive presumption does not arise in this case.

Clause 3(e) disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory

1. Both parties referred in submissions to the oft-cited passage from Hurst at [83], where the Administrative Decisions Tribunal said of cl 3(e) of the Table: This is a provision new to GIPA. In helpful submissions on the issue, the Information Commissioner said - …, section 113 of the GIPA Act, which provides protection from actions in defamation, is in almost identical terms to section 64 of the FOl Act.. The decision of the Court of Appeal in Ainsworth v Burden (2003) 56 NSWLR 620 … construed section 64 of the FOl Act and remains authoritative. In Ainsworth, the Court found that '[t]he statutory language must be construed in the context of the general principles of the law of defamation' (at 622 per Handley JA). … To demonstrate that this consideration is a relevant consideration in the application of the public interest test, the respondent must show that the information to which the applicant seeks access contains false and unsubstantiated allegations against a person, and that those allegations are defamatory. … The respondent states that it has investigated and found that the allegations made by the applicant were unsubstantiated. On this basis, it dismissed the allegations (Statement of O'Leary, 16/05/2011, Annexures R & S). … … In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury's Laws of Australia (chapter written by David Rote) states (with notes removed): 'A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by: (1) disparaging him or her; (2) causing others to shun or avoid him or her; or (3) subjecting him or her to hatred, ridicule or contempt. The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff.
2. In order to demonstrate that the public interest consideration against disclosure under cl 3(e) of the Table arises, and consistent with the Tribunal's approach Hurst and in other decisions including Guimaraes v Commissioner of Police, NSW Police Force [2022] NSWCATAD 372 at [60], FRNSW was required to show that the documents contained allegations that were made against a person that were: 1. false or unsubstantiated; and 2. defamatory in the sense that they contained defamatory imputations injurious to the reputation of a person.

Were the allegations false or unsubstantiated?

1. The GIPA Act requires that the decision-maker (and now the Tribunal) consider whether information sought by an applicant contains false or unsubstantiated allegations. This is a departure from the common-law which provides that statements carrying what is called "a defamatory sting" must be considered in the light of those, if any, which would qualify that sting; Australian Broadcasting Commissioner v Comalco Ltd (1980) FCR 510 at 515; 68 ALR 259 per Smithers J (with whom Pincus J, agreed). It is a further departure from the common law presumption of falsity that was long ago abandoned in New South Wales; see, for example, Singleton v Ffrench [1986] 5 NSWLR 425 at 430C per Mahoney JA and at 442 - 443 per McHugh JA.
2. FRNSW, by the provision of its confidential evidence, has established that with regard to allegations concerning "FRNSW-related travel" in general, those allegations were false or unsubstantiated. This is because: 1. Document 1 established that: 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION]
3. However, with regard to the allegations concerning the accumulation or use of frequent flyer points, FRNSW did not establish that those allegations were false or unsubstantiated. This is because: 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]

Are the allegations defamatory?

1. There was no dispute between the parties that the elements giving rise to a defamatory statement were those set out in Hurst at [83]; specifically that the statement would be defamatory if it was likely to injure the reputation of a person. FRNSW submitted that such imputations could reasonably be expected to injure the reputation of the persons identified. Consistent with its onus under the GIPA Act, s 105(1), FRNSW identified the defamatory matter as containing imputations and submitted that: … could clearly injure the reputations of persons that are named insofar as they contain imputations of potential corruption or non-compliance with government polices by public servants.
2. The principles for assessing whether defamatory imputations are conveyed are well-known and were recently stated in Eppinga v Kalil [2023] NSWCA 287 at [95], per Payne JA, with whom Kirk JA and Stern JA agreed.
3. There was contention between the parties about the meaning of "defamatory" for the purpose of the GIPA Act. The FBEU submitted that material "will only be defamatory at law if none of the exceptions or defences apply". The FBEU conceded that the Tribunal is not expected to conduct a defamation trial; its submission was that the Tribunal could not assess an allegation as being defamatory without considering whether a lawful exception or defence might apply. The FBEU cited no authority for these propositions, and indeed having regard to the Court of Appeal's detailed account of the history of the common law tort of defamation in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; [2011] 81 NSWLR 157 and later in Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154; (2015) 90 NSWLR 79, it is clear that the issue of whether a matter carried with it defamatory imputations and the issue of whether there exists a defence or justification in answer to the cause of action of defamation are two entirely separate matters.
4. The FBEU also submitted that qualified privilege attached to complaints made bona fide and without malice to agencies such as the ICAC and, in oral submissions, counsel for the FBEU contended that FRNSW would have to demonstrate that the allegations reported to the ICAC (and revealed by the ICAC to FRNSW) were made mala fide. There was no evidence tendered in support of that contention. Counsel for the FBEU also conceded there was no authority for this proposition; this is not surprising given, for example, that the Uniform Civil Procedure Rules 2005 (NSW), r 14.30 requires that a pleaded statement of claim in defamation must not allege that a matter, or its publication, is malicious - such an allegation is amenable to being struck out. As FRNSW submitted in its reply submissions, as the respondent agency, it did not have an onus that would extend to disproving every conceivable defence to a defamation claim before a consideration under cl 3(e) of the Table would arise.
5. The FBEU submitted that unless the five documents "contained information of the most explicit and scandalous kind," then FRNSW could not, without further evidence, discharge its onus in establishing that the material was defamatory. I disagree with that submission; defamatory imputations are commonly and readily identified from documents or statements from which those imputations are said to arise.
6. Having regard to the material contained in the five documents and the imputations that arise from them, I am satisfied that FRNSW has demonstrated that the material contains allegations that are defamatory for the purposes of the consideration described in cl 3(e) of the Table.
7. The making or disclosure of allegations that are false or unsubstantiated about a person that are defamatory is a serious matter in that such disclosure may injure a person's reputation and cause damage to that person's career and personal life. Accordingly, where I have found that the public interest consideration against disclosure, as described in cl 3(e) of the Table, arises, I have afforded that consideration significant weight.

Is Document 1 within the scope of the request?

1. FRNSW submitted that Document 1, on its face, was outside of the scope of the FBEU's request because it was about a "different complaint" and not any complaint or investigation about compliance with government travel policies and procedures relating to frequent flyer points.
2. The FBEU submits that it cannot assist the Tribunal - as it has not had access to the document - but asks the obvious and logical question: if the document was not in scope, why was it identified as such by FRNSW?
3. In reviewing Document 1, there is no mention or reference to frequent flyer points. However, the scope of the request, as set out in paragraphs 3 and 5 above, was phrased disjunctively. The request seeks documents relating to two things: firstly, "Frequent Flyer points from any airline in relation to official travel" and secondly, "FRNSW-related travel". Document 1 concerns the second element of the request.
4. Accordingly, I find that Document 1, which comes within the second category of the request, is within the scope of the request.

Should Document 1 be released?

1. For the reasons set out in paragraph 79 above, I am satisfied that the allegations concerning the more general "FRNSW-related travel" category are false or unsubstantiated allegations.
2. Having regard to Document 1 and the record of the complaint contained in it, I have concluded that Document 1 contains information that could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory. Accordingly, the public interest consideration against disclosure, as described in cl 3(e) of the Table, arises. Having regard to the likely effect on the person who was the subject to the allegations and the nature of the allegations, I accord that consideration significant weight.
3. In paragraphs 66 and 67 above, I have set out my consideration of the public interest considerations in favour of disclosure to which I have accorded significant weight. The consideration of government accountability and public confidence in the administration of government is a particularly relevant consideration in favour of disclosure of the information contained in this document. As noted above, the balancing of those considerations should favour disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. That must apply with particular force where, as here, I have considered that considerations both for, and against, disclosure should be given significant weight.
4. Having regard to the considerations in favour of, and against, disclosure and further, having particular regard to the objects set out in the GIPA Act, s 3, I have determined that the considerations in favour of disclosure of Document 1 prevail and consequently I have determined that Document 1 should be released without redaction.

Document 2 (Exhibit R5)

1. Document 2 was described in open evidence as a Memorandum to the Commissioner.
2. [NOT FOR PUBLICATION]
3. I have reviewed the contents of Document 2 and have concluded that it contains allegations that are false or unsubstantiated about a person that are defamatory. Accordingly, the public interest consideration against disclosure, as described in cl 3(e) of the Table, arises and I accord that consideration significant weight.
4. For the reasons set out in paragraphs 80 and 81 above, I have concluded that FRNSW has not demonstrated the allegations concerning Frequent Flyer points to be unsubstantiated or false and to that extent, I have concluded that the public interest consideration described in cl 3(e) of the Table does not arise with regard to that information.

Should Document 2 be released?

1. Having regard to the considerations in favour of disclosure (as set out in paragraphs 66, 67 and 96 above) and against disclosure, I have determined that the considerations in favour of disclosure prevail in this case and consequently, I will order that Document 2 is to be released without redaction.

Document 3 (Exhibit R6)

1. Document 3 was described in open evidence as a Case Note Summary.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. Pursuant to the Administrative Decisions Review Act, s 63(3)(d) the Tribunal will remit the matter to FRNSW for reconsideration of whether each of the documents identified in Document 3, to the extent they are not already produced, should be released consistent with these reasons and in accordance with the GIPA Act.
5. I have reviewed the contents of Document 3 and have concluded that it contains some allegations that are false or unsubstantiated about a person that are defamatory. Accordingly, the public interest consideration against disclosure, as described in cl 3(e) of the Table, arises, and I accord that significant weight to that consideration.
6. Consistent with my findings in paragraphs 80 and 81 above, I have concluded that FRNSW has not demonstrated the allegations concerning Frequent Flyer points to be unsubstantiated or false and to that extent, I have concluded that the public interest consideration described in cl 3(e) of the Table does not arise with regard to that information.

Should Document 3 be released?

1. Having regard for the finding that a public interest consideration against disclosure, as described at cl 3(e) of the Table, arises with regard to some of the information contained in Document 3, and while I accord significant weight to that consideration, I do not consider that the consideration against disclosure prevails over the public interest considerations in favour of disclosure. I have concluded that, on balance, the public interest considerations in favour of disclosure of the information contained in Document 3, as I have set out in paragraphs 66, 67 and 96 above, prevail over the consideration against disclosure that arises under cl 3(e) of the Table.
2. Consequently, I have determined that Document 3 should be released without redaction.

Document 4 (Exhibit R3)

1. Document 4 was described in open evidence and submissions as a copy of the ICAC corruption complaints form, submitted to the ICAC on 12 July 2022.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]

Should Document 4 be released?

1. Having regard to the relevant law and the contents of Document 4, I consider that some of the information in this document could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.
2. However, and consistent with my finding in paragraphs 80 and 81 above that FRNSW has not demonstrated that the allegations concerning frequent flyer points are unsubstantiated or false, I have concluded that the public interest consideration described at cl 3(e) of the Table does not arise with regard to that information.
3. I consider that, on balance, those public interest considerations in favour of disclosure of the information contained in Document 4, as I have set out in paragraphs 66, 67 and 96 above, prevail over the consideration against disclosure that arises under cl 3(e) of the Table.
4. Accordingly, while the public interest consideration against disclosure, as described in cl 3(e) of the Table, arises with regard to some of the information contained in Document 4 and while I accord significant weight to that consideration, I do not consider that consideration prevails over the public interest considerations in favour of disclosure.
5. For the above reasons, Document 4 should be released without redaction.

Document 5 (Exhibit R4)

1. Document 5 is the covering letter from the ICAC to FRNSW forwarding the complaint form.
2. [NOT FOR PUBLICATION]
3. Document 5 refers to allegations being received and identifies the employee as the subject of those allegations, I am not satisfied that this document could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory since the nature of those allegations are not specified and the imputations that might arise extend only to the existence of a complaint being received by the ICAC, that the ICAC has decided it would not investigate the matter but instead would refer it for review by FRNSW.
4. I have found that FRNSW has not discharged its onus of demonstrating that any public interest consideration against disclosure arises with regard to Document 5.

Determination

1. Having regard to: 1. the considerations both for and against disclosure as set out above; and 2. the principles set out in the GIPA Act, s 15, I have concluded that on balance, the public interest considerations in favour of disclosure outweigh the public interest consideration against disclosure, and applying the GIPA Act, s 13, I have concluded that there is an overriding public interest in disclosing each of the documents identified in the schedule to the Decision.
2. Accordingly, and for the reasons set out above, I find that the Decision is not the correct and preferable decision and should be set aside.
3. On that basis, I will make orders setting aside the Decision. In substitution of the Decision: 1. The five documents identified in the schedule to the Decision are to be provided to FBEU are to be released to it without redactions no later than 28 days from the date of this decision. Such a period of delay is consistent with the GIPA Act, s 107; and 2. The matter will be remitted matter back to FRNSW to determine whether any of the documents identified in Document 3 are within the scope of the FBEU's request and whether they should be released to the FBEU in conformity with these reasons.

Orders

1. I make the following orders: 1. The respondent's decision is set aside. 2. In substitution of the decision set aside: 1. the five documents identified by the respondent in its decision dated 14 November 2022 are to be released to the applicant within 28 days of these orders; and 2. the matter is otherwise remitted to the respondent for reconsideration as to whether the documents referred to in document three of the schedule to its decision dated 14 November 2022 are within scope of the applicant's request and whether those documents should be released in conformity with these reasons. 1. Publication of the confidential evidence filed by the respondent in these proceedings is prohibited. 2. Disclosure to the applicant of the confidential evidence filed by the respondent in these proceedings is prohibited. 3. Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public. 4. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked "[NOT FOR PUBLICATION]" are not to be published or released to the Applicant or the public.

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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: 02 February 2024