Fitzpatrick v NSW Office of Liquor and Gaming

4 GRNSW did not regulate the integrity of greyhound racing or conduct racing meetings.

5 The other racing bodies in NSW are Harness Racing New South Wales (HRNSW), established under the Harness Racing Act 2002, and Racing New South Wales (Racing NSW), established under the Thoroughbred Racing Act 1996. They have similar functions to GRNSW for their respective codes of racing (although Racing NSW is also responsible for regulatory matters in the thoroughbred racing industry). The integrity of greyhound and harness racing was the responsibility of the Greyhound and Harness Racing Regulatory Authority ('GHRRA') a body corporate created by the Greyhound and Harness Racing Administration Act 2004 (since repealed). Licensed racecourses and betting are regulated under the Racing Administration Act 1998.

6 The racing industry in New South Wales is primarily funded by the totalisator betting operations of TAB Limited in NSW, which has an exclusive off course totalisator licence under the Totalizator Act 1997 and, with racing clubs, an exclusive on course totalisator licence. Totalizator or starting price betting 'involves the determination of dividends in respect of a particular event by reference to the size of the betting pool (less the commission charges of the operator) and the number of successful bets': Betfair Pty Limited v Western Australia [2008] HCA 11 at [55]. There is therefore no risk to the totalizator.

7 That funding occurs through a number of commercial arrangements between TAB Limited and NSW Racing Pty Ltd (Racingcorp), which was established as a joint vehicle for the three racing codes to participate in those arrangements with TAB Limited. Those commercial arrangements are embodied in an agreement called the Racing Distribution Agreement ('RDA'). That agreement has been amended or varied by the following arrangements: - on 13 June 2000 by an amending agreement to the RDA. - on 23 August 2001 by a deed of Mutual Release between Racing NSW and TAB Limited. - on 3 April 2003 by a 2nd amending agreement. - in 2004 by a deed of accession, co-operation and amendment. Collectively these are referred to as 'the consolidated RDA.'

8 The distribution of that revenue between the racing codes is governed by an agreement between the codes called 'the intercode agreement'. The revenue GRNSW receives from TAB Limited, via Racingcorp, under the intercode agreement is the most significant source of revenue for greyhound racing in NSW.

9 Among the provisions of the consolidated RDA are those related to a Business & Strategy Committee, an advisory Committee established which involves regular meetings between representatives of Tabcorp and Racingcorp, including the racing codes, to discuss their mutual business.

10 The government also receives substantial revenue through the regulation of betting under the Racing Administration Act 1998.

11 The TAB was initially in public ownership but its operations were privatised in 1997 as TAB Limited. When this occurred the RDA was made public. In 2004 TAB Limited was acquired by Tabcorp Holdings Limited (Tabcorp) following a public offer.

12 With the development and growth of internet and telephone wagering operators outside the State, offering wagering on NSW racing, concerns grew within government and the racing industries about revenue loss. The use of interstate wagering operators, who were not subject to the same commercial arrangements as TAB Limited had with Racingcorp, and who were not subject to the same regulatory requirements as those conducting wagering within the State, posed a significant threat to the existing revenue streams. 13 In November 2004, the Minister for Racing and Gaming tabled a report in Parliament recommending amendments to certain Acts, including the Racing Administration Act 1998. Following the report, the Department took steps to amend the Racing Administration Act 1998 (the RAA). It prepared Ministerial submissions, a draft Cabinet minute, and took legal advice on the issues involved. The Minister asked the Department to consult the racing control bodies in relation to proposed amendments and a series of meetings were held during the process of development with a working party consisting of senior officers of each of the controlling bodies and officers of OLGR .The codes made various submissions to the Minister with respect to appropriate regulation.

14 The Racing Legislation Amendment Act 2006 was introduced in October 2006 and was assented to on 21 November 2006. It introduced a new Division 3 Part 4 to the RAA, which related to the publication of information concerning NSW racefields: i.e. information that identifies the name or number of a horse or greyhound entered into, withdrawn, or scratched from a race at a licensed racecourse in NSW (see section 27 of the RAA). A wagering operator was not to use racefields information unless authorised under the Regulations (section 32A and 33). The prohibition on publication and communication extended to accepting a bet referring to such information. Authorisation was to be conferred by the relevant race control body (section 33A) upon approval and the payment of fees.

15 That legislation was similar too, but not the same as, legislation passed in some other States. Western Australia's response, among other things, prohibited the publication of WA racefields without approval by persons, including those in Western Australia "or elsewhere." who act as a bookmaker, conduct betting by the operation of a totalisator, or operate a betting exchange (section 27D(1) of the Betting Control Act 1954 (WA).

16 The Minister authorised the formulation of a working party to assist in the development of the Regulations to be promulgated under the RAA ('the working party'). Representatives of the racing control bodies were invited to take part. Legal advice was sought from the Crown Solicitor's Office and drafting instructions given to Parliamentary Counsel. Much of the mechanics and actual working of the scheme would depend on the regulations.

17 In March 2007 the High Court, in Betfair Pty Limited v Western Australia [2008] HCA 11, held that section 27D(1) of the Betting Control Act 1954 (WA) was invalid to the extent that it applied to prevent Betfair (a licensed Tasmanian betting exchange) from: '…publishing or otherwise making available a WA race field: (i) by way of telephone or internet communication between the Tasmanian premises and a place in another State; or (ii) for the purpose of making or receiving offers to bet through the use of the first plaintiff's betting exchange by telephone or internet communication between the Tasmanian premises and a place in another State…'

18 In the same month the Minister commissioned Mr Alan Cameron AM to conduct an independent review of wagering in NSW, to consider reforms to the industry and 'provide a framework for future growth and sustainability.' In March 2008 Mr Cameron published an issues paper - Independent review of wagering in NSW - a framework for future growth and sustainability of the NSW Racing Industry ('the issues paper'). This was followed in June 2008 by a Wagering Background Paper ('the background paper'). 19 Racing NSW commissioned the Boston Consulting Group to prepare a response to the review which is dated 31 July 2008 ('the BCG report'). GRNSW and HRNSW engaged BIS Shrapnel to prepare a report for them entitled Revenue Outlook for TAB Limited ('the BIS report'). In November 2008 Mr Cameron delivered his report ('the Cameron report').

20 The work of the working party continued. Following the Betfair decision further legal advice was obtained with respect to the impact of that decision on the NSW regime.

21 The Racing Administration Amendment (Publication of Race Fields) Regulation 2008 amending the Racing Administration Regulations 2005 commenced on 1 July 2008.

FOI application to OLGR 22 On 21 July 2008, the Applicant made an application under the Freedom of Information Act 1989 (the FOI Act) to OLGR for access to the following documents: 'Any correspondence and/or documents between 27 March 2008 and 16 July 2008 recording communication between Racing NSW and the New South Wales Office of Liquor, Gaming and Racing and/or the Minister for Racing New South Wales relating to the decision of the High Court in Betfair v Western Australia [2008] HCA11. Any correspondence and/or documents between 1 July 2005 and 16 July 2008 recording communications between Racing NSW and the New South Wales Office of Liquor, Gaming and Racing and/or the Minister for Racing NSW relating to: a) the requirement to grant approval to publish racefields under the Act; and b) the setting of fees to be charged under regulation 16 of the Racing Administration Regulations 2005. Copies of all submissions and/or correspondence recording submissions by Racing NSW to the New South Wales Government concerning amendments to the Racing Administration 1998 and Racing Administration Regulations 2005 relating to publication of and prohibition of publication of NSW racefields. Copy of the commercial agreement known as the Racing Distribution Agreement (RDA) being the contractual relationship between TAB Limited, Racingcorp Pty Ltd, Racing NSW, Greyhound Racing NSW and Harness Racing NSW . '

23 On 22 September 2008, Mr Frank Marzic of the Office of Liquor, Gaming and Racing ("OLGR") determined that application, granting access to some documents, but refusing access to most of the documents falling within the scope of the application. An internal review application was made on 10 October 2008 (received on 14 October 2008) and determined on 27 October 2008.

24 The Applicant then filed an external review application with the Tribunal. Further documents were released after the institution of proceedings. Access to 42 documents remains in issue.

FOI application to GRNSW 25 On 21, 23 and 29 July 2008 the Applicant made an application under the FOI Act to GRNSW seeking, among other things, access to: - Minutes of the meetings of the Business and Strategy Committee for the period 1 January 2008 to date and - Copies of all submissions and/or correspondence recording submissions by GRNSW to the New South Wales Government concerning amendments to the Racing Administration Act 1998 and the Racing Administration Regulations 2005 relating to publication of and prohibition of NSW race fields - Proposals submitted to the NSW Minister for the Office of Liquor, Gaming and Racing to enable the drafting of regulations concerning race field legislation in a manner best suited to the needs of the respective codes referred to at page 4 of GRNSW Annual Report 2007 ; and -The commercial agreement known as the Racing Distribution Agreement being the contractual relationship between TAB Limited, Racingcorp Pty Ltd, Racing NSW, Greyhound Racing NSW and Harness Racing NSW.). 26 GRNSW identified the following documents in its possession which fell into the above categories: - letter from Brent Hogan, CEO of GRNSW to John Whelan, Director Racing, OLGR dated 30 April 2007 (April 2007 Submission); - letter from Brent Hogan to John Whelan dated 6 September 2007 (September 2007 Submission ); - letter from Brent Hogan to John Whelan dated 21 May 2008 (May 2008 Submission) ; - Minutes of the Business and Strategy Committee Meeting held on 17 June 2008 (June 2008 Meeting); - Minutes of the Business and Strategy Committee Meeting held on 18 March 2008 (March 2008 Meeting); and - Deed of Accession, Co-Operation and Amendment of 2004 (signed, amongst others, by TABCORP Holdings Limited, NSW Racing Pty Limited and Greyhound Racing New South Wales).

27 GRNSW determined that the requested documents were exempt under the FOI Act and informed the Applicant by way of letters dated 1 September 2008 and 22 September 2008 of that decision.

28 The Applicant sought internal review of GRNSW's decision that the documents were exempt from disclosure under the FOI Act. That internal review was conducted on 14 October 2008. GRNSW determined that the documents were exempt from disclosure and should not be released under the FOI Act.

29 The Applicant then filed an external review application with the Tribunal. Access to 6 documents remains in issue.

The Legislative Context 30 In considering applications under the FOI Act it is necessary to bear in mind the objects and context of the Act. Section 5 provides that the objects of the Act are to extend as far as possible the rights of the public to obtain access to information held by the Government. The means chosen by the Act to achieve these objects include the conferral of a legally enforceable right to access to documents held by Government agencies "subject only to such restrictions as are reasonably necessary for the proper administration of the Government".

31 The Act is remedial legislation, whose objects reflect a Parliamentary intention that good governance is advanced by openness and accountability, and, an informed public. Section 5(3) provides that it is the intention of Parliament that the FOI Act be interpreted and applied so as to further the objects of the Act. Section 16 gives a person a legally enforceable right to be given access to an agency's documents in accordance with the Act. Section 24 requires the agency to make a determination as to whether access should be granted or refused.

32 In refusing access, section 25 requires the agency to give access to a copy of the document from which exempt matters has been deleted provide it is practicable to do so and the applicant wishes to have such a copy.

33 In this case the Applicant, in the event that one or more documents are found to be exempt, seeks to have access to an edited document.

34 Importantly, section 61 of the FOI Act provides that the burden of establishing that a determination is justified lies on the agency.

35 Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

36 When considering reviews under the FOI Act, section 55 of that Act provides that the Tribunal is ensure in its reasons that it does not disclose exempt matter and 'where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.'

37 In these cases, there is a substantial overlap between the two applications for external review. With the consent of the parties orders were made that both applications be heard together, with evidence in one being evidence in the other. The hearing took place from 9 to 11 June 2009, when I reserved my decision.

38 Subsequently, OLGR sought an opportunity to make further submissions consequent on the decision of the Full Federal Court in State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 and the NSW Court of Appeal decision in McGuirk v University of New South Wales; University of New South Wales v McGuirk [2009] NSWCA 321 (the "2009 McGuirk decision"). I asked the Registrar to advise OLGR to seek the Applicant's views on this request, but no response was forthcoming from the Applicant.

39 As a result I determined to give both OLGR and the Applicant an opportunity to make submissions arising from those decisions. OLGR's further submissions were to be filed and served by 30 November 2009, with any submissions in reply form the Applicant to be filed and served by 14 December 2008.

Documents in Issue 41 It is convenient to discuss the documents in contention by grouping them under the exemptions claimed to apply to them. These are found in Sch 1 to the Act. While this necessarily involves some duplication, as more than one exemption is claimed for many of them, it provides a coherent means of addressing the issues raised.

42 The documents in issue are more fully described in the schedules of documents not released prepared by GRNSW and OLGR. Exemptions are claimed under five categories, which include claims of exemption under Part 1 of Sch 1 in relation to restricted documents by OLGR. Insofar as restricted documents are concerned the Premier, as Minister administering the FOI Act, is a party to the proceedings and has made submissions adopting the position taken by OLGR with respect to those documents.

43 The following exemptions are claimed. - First, OLGR asserts that its documents numbered A5, A6, A7 and A9 are exempt cabinet documents under clause 1(1)(a), (b) and (e) of Sch 1. - Secondly, OLGR asserts that its document numbered 38 is an exempt executive council document under clause 2(1) (e) of Sch 1. - Thirdly, OLGR asserts that its documents numbered A4, A6 A7, A8, 4, 6, 7, 8, 9, 12, 13, 14, 15, 17, 18, 21, 22, 23, 24, 25B, 26, 28, 29, 30, 31, 32, 33,34, 35, 36, 37, 38 and 40 (in part) are the subject of legal professional privilege and exempt under clause 10 of Sch 1. - Fourthly, GRNSW asserts that its documents numbered 4, 5 and 6 are exempt documents affecting business affairs under clause 7 of Sch 1. OLGR makes a similar assertion with respect to its document 7. - Fifthly, OLGR asserts that its documents numbered A1, A2. A3, A9, A10, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,17, 18, 19, 20, 21, 22, 23, 24, 25B, 26, 28, 29, 30, 31, 32, 33, 34, 35,36, 37, 38, and 42 are exempt internal documents under clause 9 of Sch 1. GRNSW makes the same assertion with respect to its documents 1, 2 and 3. - Sixthly, OLGR asserts that its documents numbered A1, A2. A3, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,17, 18, 20, 21, 22, 23, 24, 25B, 28, 31, 34, 36, 37, and 42 are exempt documents containing confidential material under clause 13 of Sch 1. GRNSW makes the same assertion with respect to all its documents. - Lastly, OLGR asserts that its document numbered 42 is an exempt document concerning the operation of agencies under clause 16 of Sch 1.

The Evidence 44 The agencies relied upon evidence from four witnesses, three of whom were available for cross-examination. They were: - Mr Peter V'Landys, the CEO of Racing NSW, who was overseas at the time of the hearing, but whose statement of 23 March 2009 I nevertheless admitted over objections from the Applicant. In doing so, I indicated that I would give no weight to paragraph 10, and, in considering what weight should be given to the balance, I would bear in mind that he had not been available to be cross-examined. - Mr Frank Marzic, Manager Racing Policy, OLGR. There are three statements from Mr Marzik, two filed in the OLGR proceedings (one made 3 March 2009 which was tendered on a confidential basis) and one in the GRNSW proceedings. Mr Marzic determined the Applicant's initial FOI request. - Mr Robert Neason, the Managing Director of Wagering of Tabcorp, who made a statement dated 27 February 2009 in the GRNSW proceedings. - Mr Darren Simpson, the General manager Operations of GRNSW, dated 3 March 2009 and filed in the GRNSW proceedings.

The Tribunal's role when reviewing Restricted Documents 45 Part 1 of Schedule 1 relates to restricted documents (see the definition of restricted document in section 4). It includes exemptions relating to cabinet documents (clause 1) and executive council documents (clause 2). Section 57 makes specific provisions with respect to the consideration of restricted documents. It provides: '(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate. (2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of: (a) the public, and (b) the review applicant, and (c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative. (3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it. (4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application. (5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter. (6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.'

46 In this case, notice was given to the Premier, as the Minister administering the Act. He has filed submissions supporting OLGR's position in relation the restricted documents.

47 There is no Ministerial certificate to which ss (1) apples. The Tribunal is therefore free to consider the grounds on which the claims of exemption are made.

48 The Tribunal's role when carrying out that task was clarified by the Appeal Panel in IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79. In such circumstances section 57 requires that the Tribunal determine whether it is satisfied that there are 'reasonable grounds for the claim' of exemption. If so satisfied, the Tribunal's inquiry is to go no further. If not so satisfied, after considering the document, the Tribunal is to reject the claim. As the Appeal Panel pointed out in IPART (at [42]) this procedure does 'not permit the Tribunal to engage in full merits review.' As a result there is 'no scope' for the Tribunal to exercise its residual discretion with respect to such reviews: IPART at [46].

49 The Appeal Panel in IPART followed the decision of the High Court in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423. There the High Court considered the role of the Commonwealth AAT when reviewing a Ministerial Certificate to the effect that disclosure would be against the public interest. Section 58(5) under the Freedom of Information Act 1982 (Cth) provided that the Tribunal was to determine 'whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.' Hayne J, said, at [55]: '…Its task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to the public interest?'

50 At [63] he said: 'In deciding whether reasonable grounds exist for a claim, the Tribunal must take account of any relevant evidence that has been adduced and of any relevant arguments that have been advanced. It must consider the particular claim that has been made and that will require consideration (and commonly the examination) of the particular documents that are in question.'

51 Heydon and Callinan JJ agreed. At [131] they said: '…. It does follow, as the majority in the Full Court effectively held, that if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review. It is important to notice that the statutory language does not give an entitlement to access if there are, as often there may very well be, reasonable grounds for the revelation of the document in the public interest. It further follows that the Tribunal is not obliged to undertake a balancing exercise of the kind the appellant submits it was bound to do. The role of the Tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review of the kind contemplated by section 43(1) of the AAT Act. Whether therefore, the only practical and real means of attacking a conclusive certificate will be by demonstrating that there are no reasonable grounds in fact, or that the grounds relied on are so unreasonable that no reasonable person could hold the opinions upon which they are based, does not arise for decision in this appeal.'

52 In this case that burden requires the agency to establish that there are reasonable grounds for the claim that the documents in question are exempt cabinet documents or executive council documents.

Cabinet and Executive Council Documents 53 Clause 1 provides: '(1) A document is an exempt document: (a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or (b) if it is a preliminary draft of a document referred to in paragraph (a), or (c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or (d) if it is an official record of Cabinet, or (e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet. (2) A document is not an exempt document by virtue of this clause: (a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or (b) if 10 years have passed since the end of the calendar year in which the document came into existence. (3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause. (4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.'

54 Clause 2 concerns Executive Council documents and provides: '(1) A document is an exempt document: (a) if it is a document that has been prepared for submission to the Executive Council (whether or not it has been so submitted), or (b) if it is a preliminary draft of a document referred to in paragraph (a), or (c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or (d) if it is an official record of the Executive Council, or (e) if it contains matter the disclosure of which would disclose information concerning any deliberation or advice of the Executive Council. (2) A document is not an exempt document by virtue of this clause: (a) if it merely consists of: (i) matter that appears in an instrument that has been made or approved by the Governor and that has been officially published (whether in the Gazette or elsewhere), or (ii) factual or statistical material that does not disclose information concerning any deliberation or advice of the Executive Council, or (b) if 10 years have passed since the end of the calendar year in which the document came into existence. (3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause.'

55 There are substantial similarities between the clauses.

56 With respect to clause 1(1)(a) the parties submissions were at odds as to the degree to which a document must be prepared for submission to cabinet. OLGR submitted that it is 'enough if submission to Cabinet is one of the purposes for which it was prepared. (Hawker v Premier's Department unreported, District Court, NSW, Urguhart J, 17 December 1990; Simos v Wilkins at 10); Cianfrano v Director General, New South Wales Treasury [2005] NSWADT 7 at [35] per O'Connor P, National Parks Association of New South Wales Inc v Department of Lands [2005] NSWADT 124 at [26]).' The Applicant, relying on a decision by the Victorian Court of Appeal in Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 with respect to similar Victorian provisions, argued that 'it is necessary that the dominant or operative purpose for the preparation of the document is that it be submitted to Cabinet.' The chain of authorities in NSW do not put the purpose test that high, with the necessary connection being that submission to cabinet is one of the purposes for which the documents was prepared (National Parks Assn of New South Wales Inc v Department of Lands) and not a 'peripheral purpose' (Ministry of Transport [2007] NSWADT 236 at [43]).

57 OLGR made the following submissions with respect to the documents in issue: '25 Document A5 is a submission to the Minister, attaching a draft Cabinet minute and enclosing a draft letter to the Premier enclosing the Cabinet Minute, the draft minute itself and the statutory report of Gambling and Racing Acts published in November 2004. The draft Cabinet Minute is plainly exempt under clause. 1(1)(b). It is expected that the Minister will consider and raise the issues in Cabinet the matters that were canvassed with him in the briefing note which attached the draft Cabinet Minute. Similarly, the draft letter to the Premier, which attaches the Cabinet Minute, would canvass matters that were ultimately deliberated upon by Cabinet. Consistent with the approach taken in McGuirk v Director General, The Cabinet Office, these documents are therefore exempt under cI. 1(1)(e). 26 Document A6 attached a copy of the draft Cabinet Minute and the covering Departmental brief to the Director General refers briefly to the contents of that Minute. The draft is plainly exempt under clause. 1(1)(b), while the reference to the Cabinet Minute is exempt under clause. 1(1)(e). 27 Document A7 contains extracts from the draft Cabinet Minute and so is exempt under clause. 1(1)(c). 28 Paragraph 2 of Document A9 refers to the contents of the proposal to Cabinet. As such, release would reveal the deliberations of Cabinet, making the document exempt under clause. 1(1)(e). … Document 38 is a copy of the Department's submission to the Minister and attaches the Executive Council Minute. The submission attaches the signed copy of the Executive Council Minute. In Cianfrano v Department of Premier and Cabinet [2008] NSWADT 141 at [55], the Tribunal held that an approved Executive Council Minute is a document submitted to the Executive Council (so that clause 2(1)(a) applies), is an official record of the Council (so that clause 2(1)(d) applies), and that release of the document would reveal the deliberations or advice of the Council (so that clause 2(1)(e) applies). The same analysis should be adopted here. The copies of the proclamation, opinion of parliamentary counsel, regulations and explanatory note, which were attached to the Executive Council Minute are exempt on the same basis. On their face, the letters from the Minister for Gaming and Racing to the Premier and Minister for Regulatory Reform deal with the promulgation of the Regulations by the Executive Council and so would disclose information concerning any deliberation or advice of the Council and are exempt under clause. 2(1)(e).

58 In support of those submissions, under section 57(2), OLGR relied on the confidential affidavit of Mr Marzik, which addressed issues concerning the preparation and use of those documents. Based on Mr Marzik's confidential evidence OLGR submitted that there were reasonable grounds for the claim that documents A5, A6, A7 and A9 are exempt cabinet documents, and that its document numbered 38 is an exempt executive council document.

59 Having read Mr Marzik's affidavit I accepted those submission and found that his affidavit disclosed reasonable grounds for the exemptions claimed. The exceptions in clauses 1(2) and 2(2) did not apply. In the light of those conclusions, in accordance with section 57(3), I did not require the documents to be produced in evidence.

60 As a result I have not considered the other exemptions claimed in respect of those documents not produced.

Legal professional privilege 61 Clause 10 provides: (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.

62 In considering claims for exemption based on legal professional privilege under clause 10 of the FOI Act the Appeal Panel found that the common law test, rather than the client legal privilege provisions of the Evidence Act 1995 applies: Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26. The Appeal Panel explained at [9]: 9 The Tribunal and the parties proceeded on the basis that it is the common law principles of legal professional privilege, rather than the statutory provisions relating to client legal privilege in the Evidence Act 1995 (NSW), that are applicable in this case. We agree with that approach for the following reasons. Clause 10 of Schedule 1 exempts a document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. Part 3.10 , Division 1 of the Evidence Act 1995 (NSW), relating to client legal privilege, governs the adducing of evidence, not the production of documents. In Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49, the majority of the High Court (Gleeson CJ, Gaudron and Gummow JJ) noted at [3] that even in a jurisdiction where the Evidence Act applies, the relevant provisions relate only to the adducing of evidence. The majority went on to say that the circumstances in which legal professional privilege may apply are not limited to the adducing of evidence. They include other procedures including the discovery and inspection of documents

63 In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal proceeded on the basis that the common law of legal professional privilege rather than the client legal privilege provisions under the Evidence Act applied to clause. 10, noting (at [41]) that this approach had been adopted by the Appeal Panel.

64 Since those decisions were made the Evidence Act 1995 has been amended by the Evidence Amendment Act 2007 which made substantial changes to the provisions dealing with client legal privilege, found in Division 1 of Part 3.10, with effect from 1 January 2009. This includes the introduction of a new s 131A in Division 4 of Part 3.10, which provides: '(1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6.'

65 The Dictionary to the Evidence Act 1995 contains the following definitions: "court" means NSW court. … "NSW court" means: (a) the Supreme Court, or (b) any other court created by Parliament, and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.'

66 This Tribunal 'is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice': s 75(2) ADTA. As a consequence it is not a court to which s 131A of the Evidence Act 1995 applies in the course of its own proceedings and procedures.

67 That, however, is not the end of the matter. All parties submitted and I agree, that for the purposes of clause 10, following the amendments made by Evidence Amendment Act 2007, the test for whether a document would be "privileged from production in legal proceedings on the ground of legal professional privilege" in proceedings in NSW courts, is now determined by the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 and not by the common law of legal professional privilege. This is so whether one is considering the adduction of evidence (to which the repealed provisions of the Evidence Act 1995 applied) or the acquisition of evidence by compulsory disclosure processes, such as summons and discovery ((to which the repealed provisions did not apply).

68 Thus, consistently with the reasons of the Appeal Panel in Director General, Attorney General's Department v Cianfrano, the task of an officer of an agency, when considering an exemption under clause 10, is to is to make up his or her own mind, on the basis of such information as is available, about whether the matter contained in a document has characteristics that would make it privileged from production in legal proceedings on the ground of client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995. (cf Howell v Macquarie University [2008] NSWCA 26 per Campbell JA at [54]). The same task confronts the Tribunal on review.

69 Section 118 of the Evidence Act 1995 provides: 'Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.'

70 A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].

71 Section 117 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides: (1) In this Division: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) … confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means: (a) an Australian lawyer, and (b) an Australian-registered foreign lawyer, and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). …

72 In AWB v Cole No 5 [2006] FCA 1234 Young J summarised the relevant principles at [44]. It is established that the privilege attaches to advice on the operation and application of laws, proposed laws, and their drafting, including advice given by parliamentary counsel in relation to the drafting and preparation of bills: General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 at [74].

73 In proceedings before the Federal Court Betfair Pty Ltd has challenged decisions by Racing NSW and Harness Racing NSW that it pay 1.5% of turnover as a condition of being granted approval to use racefield information. That approval has been granted under the Racing Administration Act 1998 and the Racing Administration Amendment (Publication of Race Fields) Regulation 2008. Betfair alleges that the conditions that it pay 1.5% of turnover, are unlawfully protectionist and discriminatory in breach of the guarantee of free trade in s 92 of the Commonwealth Constitution. Those proceedings have involved the consideration by the Federal Court, at both single Justice (Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140) and Full Court levels (State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160), of some of the same issue relating to legal professional privilege that have been agitated before me.

74 In the course of the Federal Court proceedings Betfair sought discovery from Racing NSW and HRNSW. Among the discovered by them were, [2009] FCAFC 160 at [11]: 1. Drafting instructions by OLGR to Parliamentary Counsel (and drafts of such drafting instructions); 2. Draft regulations and draft Bills; 3. Emailed communications made for the purpose of formulating instructions to Parliamentary Counsel; 4. Part of a report prepared by the Chief Executive of Racing NSW for the Board of Racing NSW summarizing information in category 2; and 5. Advice from the Crown Solicitor's Office.

75 The State of New South Wales intervened in those proceedings claiming public interest immunity and legal professional privilege in respect to those documents. At first instance, Jagot J found that the drafting of legislation pursuant to instruction did not, in and of itself, involve a retainer, the dominant purpose of which was the giving of legal advice. As a result the legal professional privilege claim was not successful. The State of NSW sought leave to appeal that decision.

76 On appeal the Full Court held, at [15] to [24]: "15 The relationship between the State and Parliamentary Counsel may be one of client and lawyer: see Waterford v Commonwealth (1987) 163 CLR 54, 60-2 per Mason and Wilson JJ. If advice were sought of and given by Parliamentary Counsel in relation to the drafting and preparation of draft legislation, this would qualify for legal advice privilege: see Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at 652 [41]; and WorkCover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 at 521 [74]. This seems to be accepted by the parties. 16 The question then arises as to the scope of the retainer between the State and Parliamentary Counsel in circumstances where Parliamentary Counsel is asked to prepare draft legislation. The scope of a retainer may not be confined to the client's express instructions. Matters which would reasonably arise in the course of carrying out express instructions should be regarded as coming within the scope of the retainer. … 21 Similarly with preparing draft legislation, either in the form of an Act of Parliament or a regulation. Parliamentary Counsel do not merely type or format the legislation. Parliamentary Counsel apply legal skill and knowledge to give written expression to the policy underlying the proposed legislation. Parliamentary Counsel would be expected, and perhaps under a duty, to advise upon the legality or effectiveness of the legislation being sought by the instructors. In the case of subordinate legislation, if regarded as beyond power, Parliamentary Counsel would presumably advise of this view. Similarly, if an Act of Parliament was considered unconstitutional, or inconsistent with another Act of Parliament, this is a matter Parliamentary Counsel would be expected to advise upon, even if the only express instruction was to draft the legislation. … 22 Where no problem of this kind arises, Parliamentary Counsel, in drafting the legislation and presenting the draft to the government agency, is in effect advising that the draft legislation is in accordance with the instructions given and gives legal effect to those instructions. The draft itself is not the legal advice, but the communication in providing the draft legislation contains implicitly the advice of Parliamentary Counsel endorsing the draft legislation as being effective and valid."

77 The Full Court also considered whether the privilege applied to the communications made by OLGR to members of the working group, prior to the communication of any drafting instructions to Parliamentary Counsel about the instructions to be given to Parliamentary Counsel, including drafts of drafting instructions. The Court, observed at [32] "… [t]he formulation of appropriate instructions to Parliamentary Counsel is virtually indispensable if the State is to obtain effective legal advice from that quarter. The public interest that it does so is self-evidently high. Given the complexity of many matters attracting legislative action, it can reasonably be expected that the difficulty of drafting such instructions in many situations is likely to be greatly increased without the assistance of informed third parties. [33] Naturally enough, in deciding whether the function of the third party was the relevant function of enabling the client to obtain legal advice, a court will consider not only the client's stated purpose in having the communication created, but also the client's conduct. As Finn J said [in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at 369 [47]], the client's own conduct may show that the intended use of the communication was "not its communication to the legal adviser ... but rather it was to advise and inform" the client in determining how the communication should be used in making a communication of its own. Stone J [in Pratt ] made a similar observation, also noting (at 386-7 [106]) that "[t]he difficulties in proving the relevant purpose should not be underestimated".

78 This is consistent with the decision of the Court of Appeal in General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84.

79 The Full Court referred (at [34]) to an email from Mr Marzic dated 24 January 2007 which said that the purpose of the Working Group was "to workshop the drafting instructions for the race fields regulations" and "to assist OLGR in developing drafting instructions to be provided to Parliamentary Counsel. Draft regulations will then be submitted to the Minister for consideration. The meeting is confidential in accordance with the protocol that applies to developing legislation generally."

80 There was also evidence that the subsequent discussions of the Working Group focused on successive drafts of the drafting instructions that were to be given to Parliamentary Counsel. The Full Court said at [36] and [37] that: "… this was not a case of merely seeking and receiving input from third parties with a view to OLGR independently formulating the drafting instructions to Parliamentary Counsel; nor, indeed, was this a case of third parties lobbying the Government. Examination of the documents the subject of this appeal showed that the preparation and formulation of the drafting instructions to be provided to Parliamentary Counsel was essentially an iterative process involving both the OLGR and members of the Working Group. Each successive draft of the drafting instructions provided to the Working Group was a step along the way towards finalising the drafting instructions that were ultimately given to Parliamentary Counsel and upon which Parliamentary Counsel was to act in drafting the new regulations. Successive drafts were the product of the responses from members of the Working Group and OLGR designed to move closer towards agreement on a final version of the drafting instructions. This process gave the OLGR and the Working Group members a more or less equal opportunity to contribute to working out consensually the final instructions to be given to Parliamentary Counsel and upon which Parliamentary Counsel was to act. … [37] The consultative process adopted by the State on this occasion was very different from the situation in which the State publishes an exposure draft of proposed legislation, and invites public comment. In the process at issue in this case, OLGR and members of the Working Group were essentially working together consensually, under a regime of confidentiality, to formulate and finalise the drafting instructions that OLGR was to provide to Parliamentary Counsel in order for it to obtain appropriate regulations."

81 The Full Court concluded at [38]: "Examination of the documents the subject of appeal confirms that these documentary communications, whether from OLGR to members of the Working Group or from members of the Working Group to OLGR, were made in order consensually to formulate drafting instructions that OLGR would provide to Parliamentary Counsel. Having regard to the documents and the evidence to which we have been referred, we conclude that the communications were made for the dominant purpose of the State, as represented by OLGR, seeking and obtaining legal advice from Parliamentary Counsel. We therefore reject Betfair's submission that the dominant purpose test was not satisfied."

82 OLGR submits that the conclusions of the Full Federal Court should be treated as highly persuasive: Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 at [47]. I accept that submission.

83 OLGR submits that the documents subject to the legal professional privilege exemption can be divided into three categories.

84 The first is advice from the Crown Solicitor and counsel on the legality of proposed legislative and regulatory amendments, including summaries of that advice and internal discussions of that advice (documents A4, A6, A7, A8, A10, 12-15, 17, 18, 21-22, 23, 24, 43(only the summary of advice)). The documents are more fully described in the OLGR schedule of documents. Having reviewed the documents in issue it is evident that the giving and obtaining of legal advice was the dominant purpose behind these communications. They are confidential documents prepared for the purposes of OLGR obtaining legal advice with respect to proposed regulations. The exception to this is an email in document 23, dated 21 February 2008, which forwarded privileged material, but is entirely organisational in content and does not relate to legal advice.

85 Secondly, documents relating to drafting instructions to the Parliamentary Counsel's Office, advice from the PCO and annotated draft regulations (documents 4, 6, 7, 8, 9, 12-15, 17-18, 21, 22, 26, 28-38). Having reviewed those documents I am satisfied that documents 4, 6, 8, 9, 21, 22, 26, 28-31 and 33-38 relate to confidential communications relating to the giving and receiving of legal advice between OLGR, others and its legal advisors in the course of the drafting of the regulations.

86 Documents 12-15 and 17-18 are various drafts of an OLGR report to the Minister on the consultations with the racing control bodies, with various draft attachments. Included within document 12 are drafting instructions to the Office of Parliamentary Counsel which I have already found are covered by legal advice privilege. The latter drafts, from document 15 onward, also contain a draft letter from the Minister to the CEO of Racing NSW in its evolving incarnations.

87 The report, in its various incarnations, advised the Minister on the progress of consultations with the working group regarding the development of the Regulation and on issues considered by the group which require further debate or decision and makes certain recommendations. The reports reflect the progress of the working party's confidential deliberations in the evolution of regulatory proposals, and discusses legal advice received and to be obtained. The reports advise the Minister on the progress of confidential consultations he put in place. They reflect the consultative process which the Minister had put in place for the operation of the working party "under a regime of confidentiality, to formulate and finalise the drafting instructions." I accept that the dominant purpose for their creation was as part of the process of seeking and obtaining advice from Parliamentary Counsel.

88 Documents 13, 14, 15 and 17 also contain emails which attached those drafts. The emails themselves do not contain any communication made for the purpose of seeking legal advice, and are not exempt.

89 Thirdly, legal advice from Racing NSW on the implications of the Betfair decision (document 25B). This was forwarded to Senior Officers of the Department, via email, by the CEO of Racing NSW as confidential legal advice. I infer from other correspondence that this was by way of quid qou pro for the provision of confidential Crown Solicitor's advice to him, by arrangement with the Minister. A reading of the document confirms that it is advice on the implications of the High Court's decision in Betfair. It is unsigned and is not on any letter head. It is not clear who wrote it, whether the author was a lawyer within the meaning of s. 117 of the Evidence Act 1995, or (assuming the author was a lawyer) for whom it was written. Mr V'Landy's in his statement does not refer to it specifically, but does refer (in paragraph 11) to providing OLGR with Racing NSW legal advice (without giving any indication of who the advice was from), and objects to the release of this material which he says was provided confidentially and in reliance on legal professional privilege. Given his use of apparently privileged information (which is discussed below) I indicated during the hearing that I could give no weight to his assertions of reliance on legal professional privilege. I remain of that view.

90 The burden of establishing that a communication is the subject of legal advice privilege is on the agency. With respect to this advice OLGR argues that it records legal advice to NSW Racing, but not legal advice to it. This is certainly not clear from the document itself. Who wrote it, and their status, is entirely unclear. While the accompanying email asserts that it is legal advice more is required to attract the privilege under the provision of the Evidence Act 1995. Insofar as the clause 10 exemption is concerned, I am not satisfied it attaches to this document.

Waiver 91 Section 122 of the Evidence Act 1995 relevantly provides: '(1) … (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or (ii) … (iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).'

92 This provision is said to represent a legislative attempt to more closely align s 122 with the common law of waiver of legal professional privilege, as expounded in Mann v Carnell (1999) HCA 66: see Explanatory Note to Sch. 1 item [57] of the Evidence Amendment Bill 2007. In that case Gleeson CJ, Gaudron, Gummow and Callinan JJ said at [28 and 29]: 'Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which affects a waiver of the privilege [34]. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law' [37]. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank [38], the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the banister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

93 Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39 illustrates the role considerations of fairness play in determining whether there has been conduct inconsistent with the maintenance of the privilege in imputed waiver. It was a case in which the High Court considered whether a limited, confidential disclosure of privileged information to a third party for a specific purpose resulted in an implied or imputed waiver. The information concerned was a draft affidavit and initiating process to recover legal costs prepared for Mr Goldberg in proceedings against Ng. Mr Goldberg provided the documents to the Law Society, which was investigation a complaint of professional misconduct made by Ng. The majority of the High Court (Deane, Dawson and Gaudron JJ) noted that Mr Goldberg had not intended to waive the privilege attached to the documents by providing them to the Law Society, but held that the question for determination was whether 'considerations of fairness required an imputed waiver', at [27].

94 There are a number of decisions which consider whether partial disclosure of privilege information results in waiver of the all the information, as argued by the Applicant, who asserts that disclosure of the gist of an advise amounts to waiver.

95 In Waite v Hornsby Shire Council [2007] NSWADT 265 at [31-37] Higgins JM held that partial disclosure of information in relation to one subject matter was not inconsistent with the maintenance of the privileged information in respect to other subjects discussed in the advice.

96 In adopting that approach the Tribunal followed the decision the Full Court of Federal Court of in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 where Tamberlin J said, at [6]: 'The above extracts express the substance of the advice that was given by the Australian Government Solicitor in each of the paragraphs. In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case."

97 Gyles J said at [68]: "The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege." See also Ashfield Municipal Council v RTA [2004] NSWSC 917 at [18-22] per Barrett J.

98 In Osland v Department of Justice [2008] HCA 37 the Victorian Attorney-General had released a press release in which he advised that he had received advice from three named Senior Counsel that a petition of mercy should be denied. The Court found that the privilege was not waived. Gleeson CJ, Gummow, Heydon and Keifel JJ said at [48-49]: 'The evident purpose of what was said in the press release was to satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations. The three eminent lawyers who gave the advice were appointed following consultation with the State Opposition. They were external to the Department. Their advice covered all the grounds upon which the petition was based. They recommended denial of the petition. Their advice was carefully considered, and the petition was denied. The Attorney-General was seeking to give the fullest information as to the process that had been followed, no doubt in order to deflect any criticism, while at the same time following the long-standing practice of not giving the reasons for the decision. This did not involve inconsistency; and it involved no unfairness to the appellant. If she had a legal right to reasons for the decision, then she still has it. If she had no such right, the press release did not deprive her of anything to which she was entitled. What the Attorney-General said did not prevent the appellant from making public her petition, or any part of it, as and when she desired. Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd [26], questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s 122 of the Evidence Act 1995 (Cth) which, as was said in Mann v Carnell[27], has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law[28].'

99 Bearing that understanding of the law in mind I turn to consider whether or not there has been a waiver of the privilege in relation to any or all of the information to which legal advice privilege attaches.

100 As I understand it the Applicant argues that legal advice privilege has been waived in three respects. - First, by disclosing the advice from the Crown Solicitor and Parliamentary Counsel to the Working Party. - Secondly, by Mr Whelan (Director, Racing, OLGR) on 1 April 2008 releasing to Mr V'Landys advice from the Crown Solicitor on the implications of the Betfair decision 'on a confidential basis.' - Thirdly, by Mr V'Landy's releasing the gist of that advice during a radio interview on 2KY on 16 July 2008 there has been an imputed waiver of the privilege. There is some debate as to precisely which legal advice Mr V'Landys was referring during that interview which has been the subject of supplementary submissions from the parties.

101 With respect to each waiver the Applicant argues that: 'The communications were inconsistent with the maintenance of the privilege because: (a) the recipients were entitled to use the information and convey it to parties not present at the meetings; (b) the role of the controlling bodies was compromised by their relationship with TAB; (c) the controlling bodies do not represent the Crown; (d)the information was conveyed for a purpose that went beyond drafting and included making submissions as to whether the Regulations should be made and in what form.'

102 The Working Party - It is clear from the evidence of Mr Marzik and Mr Simpson, who both attended the initial working party meeting, that the meeting opened with OLRG's representatives making it clear that the deliberations of the working party were confidential. This is confirmed by Mr V'Landy's statement and is in accordance with the emails inviting participants to the meeting. In his evidence Mr Marzik, who attended all six meeting of the working group, was firm that at later meeting he also cautioned the participants as to the confidentiality of the meetings and of their discussions. An examination of the various emails between Mr Marzik and participants of the working group reveals that when he distributed legal advice he made it clear that it was provided on a confidential basis.

103 Mr Marzik acknowledged that implicit in the nature of the working group, was that representatives of each racing body would have to report back to their respective boards on the work of the working party. He said that while participants could consult with their Boards 'in general terms' they were not to disclose specific drafting instructions or advice. They could discuss issues, but were not to pass on or distribute documents they were using. He described this as a convention applicable to such working parties, which has been adopted and used before, and which is well understood. He agreed that in contributing to the deliberations of the working party racing bodies were expected to consult external stakeholders, such as TAB Limited.

104 Mr Marzik explained that the contribution of the racing bodies to the development of the Regulations was essential as they were the bodies responsible for granting approvals and levying fees. They would therefore be a lynch-pin of the new racefields scheme, and their input into the design and form of the Regulations was critical. He acknowledged that the racing bodies were effectively industry representative bodies. He agreed they have with a commercial focus and a responsibility for the 'economic development and viability of the racing industry.' He accepted that they obtain the large majority of their funding from Tabcorp under the RDA, which is a 'purely commercial arrangement.' He accepted that there was a risk, when dealing with the controlling bodies, that they might seek to advance Tabcorp's commercial interests (to which their income is tied), but did not accept that this conflict might affect their role in policy development. He agreed that the racing bodies had been anxious for the racefields legislation to be implemented since 2005 and were concerned at their reductions in revenue.

105 Mr Simpson from GRNSW had only attended the first meeting of the working party. His evidence as to the confidentiality of the process mirrored that given by Mr Marzik. Mr Simpson said that his understanding of the racefields legislation at the time was that it was designed to catch everyone other than Tabcorp, who were already paying a fee. GRNSW was interested in maximising its return.

106 After the first meeting GRNSW was represented at the working party by its CEO, who reported back to the Board. Mr Simpson said he attended those Board meetings. The CEO had briefed the Board on the working party processes, but not on detailed proposal. Mr Simpson had not seen any legal advice, or summaries of it, provided by the State. Mr Simpson said GRNSW had consulted a number of outside bodies, including Betfair, as part of the process, but had not consulted Tabcorp. He agreed that the income of all the racing bodies was tied to Tabcorp, and accepted that there could be a perception that the racing bodies in the working party were seeking to advance Tabcorp's interest.

107 Given that evidence with respect to the operations of the working party I do not accept that, by providing summaries of legal advice to the Members of the working party, OLGR waived the privilege in that advice. The meeting and operations of the working party were expressed and understood to be confidential. While participants were authorised to feedback to and consult with their organisations and others on general issues, the common understanding was that the specifics with which the working party were concerned were to be treated as confidential, and that documents provided to participants were not for distribution. The provisions of summaries of legal advice by OLGR to participants in the working group must be viewed in that context.

108 The communication of advice took place in circumstances which rendered it a confidential communication within the meaning of s 177 of the Evidence Act 1995. Because the legal advice was disclosed in the course of a confidential communication, s 122(5) provides that by making that disclosure OLGR is 'not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence.'

109 As a result I am not satisfied that legal advice privilege was waived by the disclosure of legal advice to the working party.

110 The Provision of the Betfair Advice to Mr V'Landy's - The letter from Mr Whelan to Mr V'Landy's forwarding this advice said: 'Reference is made to your recent discussions with the Minister concerning the High Court Judgement. In accordance with the Minister's undertaking to you, I have enclosed for your information a copy of the advice received from the Crown Solicitor on this matter. I would stress that this advice is provided on a strictly confidential basis and should not be provided to a third party in any circumstances. Any enquires regarding this matter should be directed to me in the first instance.'

111 Mr Marzik in his evidence said he was aware of this communication, but had not been a party to it. Mr V'Landys in his statement does not address it.

112 In my opinion the letter providing the advice to Mr V'Landys makes it clear that the disclosure was on a confidential basis and that he should not disclose it to any third party. Those circumstances rendered it a confidential communication within the meaning of s 117 of the Evidence Act 1995. Because the legal advice was disclosed in the course of a confidential communication, s 122(5) provides that by making that disclosure OLGR is 'not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence.'

113 Mr V'Landys' Radio Interview - Mr V'Landy's was interviewed by Greg Radley on 2KY on 16 July 2008. In the course of that interview he made a number of statements with respect to the advice the NSW Government had received. 'PETER V'LANDYS: Look, the New South Wales Government received the best legal advice possible both from Queen's Counsel barristers and the Crown Solicitor. They're very confident that it will meet any challenge but that's not to say people won't challenge it and if they do we're ready to take it on because the whole viability of the New South Wales racing industry is at stake. … Look as I said the New South Wales Government's received the best possible legal advice both from the Crown Solicitor and barristers on constitutional matters and they believe that the legislation is foolproof. If people take us on we will fight because it's very important issues because our revenues are under threat. People are making enormous profits exploiting the New South Wales race fields and we cannot pay our participants to stay in the work force. The longer these people exploit and make profits at the expense of the New South Wales racing industry, the more the industry will contract.

114 In supplementary submission OLGR raised the issue of whether the advice Mr V'Landys was referring to was that provided to him on 1 April 2008 by Mr Whelan, or whether it included earlier advices provided to the working party. . It is somewhat difficult to precisely reconcile Mr V'Landy's statements during his interview with the exact advices, all of which cover the subject matter he referred to, as none of them were provided by Queens Counsel. Given that he was unavailable for cross-examination it is not possible to reconcile those differences.

115 My view is that Mr V'Landy's comments on 2KY demonstrate a breach of the obligations of confidentiality which were placed on Racing NSW. These obligations arose, first, from its agreement to participate in the working party on the understanding that its deliberations were confidential and, secondly, by the terms of the letter to Mr V'Landys from Mr Whelan, of 1 April 200. This made it clear that the advice he was being given access to was provided on a confidential basis.

116 I do not accept that Mr V'Landy's breach of his obligation of confidentiality can be reasonably said to constitute a waiver by OLGR. Both with respect to the operations of the working party and in providing M V'Landys with the advice, OLGR had emphasised the confidential nature of the communications. OLGR had not voluntarily or knowingly agreed to Mr V'Landys disclosing any of those communications to the public. OLGR had not expressly consented to him doing so. In my view there is no evidence from which it can be reasonably said that OLGR impliedly consented to Mr V'Landys doing so.

117 I agree with the Applicant that in his comments on 2KY Mr V'Landy's purported to publicly deploy some of the legal advice he had access in an effort to bolster the position of NSW Racing on the racefields legislation. I am satisfied he did so without the consent or approval of OLGR, and in breach of NSW Racing's obligations of confidentiality.

118 Section 122(5)(a) of the Evidence Act 1995 provides that a client is not taken to have acted in a manner inconsistent with the privilege because the substance of evidence, to which the privilege claim relates, has been disclosed in the course of making a confidential communication.

119 Here OLGR released the legal advice in issue to Racing NSW subject to clear and understood requirements as to confidentiality. The fact that Mr V'Landys later made unauthorised, public comments with respect to some of that advice, does not show conduct by OLGR inconsistent with the maintenance of the privilege. Its conduct was always consistent and aimed at preserving the confidentiality of its advice.

120 I am reinforced in this conclusion by the fact that s 122(4) provides had the advice been disclosed by an employee or agent of OLGR without its authority, the advice would not have been knowingly or voluntarily disclosed. A different conclusion should not result from the conduct of Mr V'Landys.

121 I conclude that the privilege has not been waived by Mr V'Landy's conduct. Documents Affecting Business Affairs 122 Clause 7 of Schedule 1 creates this exemption. It relevantly provides: (1) A document is an exempt document: … (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.

123 GRNSW submits that both sub clause (b) and (c) apply to make the deed and to the minutes of the Business & Strategy Committee meetings held in March and June of 2008. It is convenient to deal with the minutes first (GRNSW documents 4 and 5).

124 The Business & Strategy Committee is an advisory Committee established under the consolidated RDA, which involves regular meetings between representatives of Tabcorp and Racingcorp (and thereby the racing codes) to discuss their mutual business. According to the evidence its functions include considering issues affecting wagering and gaming (such as Tabcorp's rules for wagering), and making recommendations in relation to proposed strategies of the Committee Members (e.g. in relation to their respective business plans for the conduct, development and promotion of wagering and gaming. The Committee receives and considers audited statements from Tabcorp as to the fees payable by it under the Consolidated RDA, management reports from Tabcorp as to the conduct of its business and other policies, strategies and reports, and budgets in relation to wagering and gaming businesses.

125 Committee meetings are conducted on a confidential basis. Each member of the Committee is required to give a written undertaking that any information disclosed to them in their capacity as a member of the Committee will be treated confidentially. All the bodies represented at Business & Strategy Committee meetings object to the release of the minutes on the basis they contain information which is commercially sensitive to them. They say that disclosure would adversely affect their business and commercial operations. In his evidence, Mr Nason, the Managing Director of Wagering at Tabcorp said that, 'information that is contained in the minutes relating to matters such as Tabcorp's business strategies, performance, future plans and negotiations with other bodies are matters that are extremely commercially sensitive to Tabcorp.'

126 The minutes of the Business & Strategy Committee for March and June 2008 deal with issues such as development strategies, an analysis of wagering performance, business plans for the conduct, promotion and development of wagering and gaming, media arrangements and other commercial arrangements and concerns affecting the operations of participants. I accept that they contain information that has commercial value to Tabcorp and Racingcorp, and that their release could reasonably be expected to destroy or diminish the commercial value of the information. The information would undoubtedly be of value to Tabcorp's competitors. The minutes are therefore exempt under clause 7(b).

127 I also accept that release of the minutes would disclose information concerning the business, commercial or financial affairs of Tabcorp and Racingcorp. While I accept that this could reasonably be expected to have an unreasonable adverse effect on those affairs, by for example giving a competitive advantage to Tabcorp's competitors, I do not accept that release would prejudice the future supply of such information to GRNSW. This is so because the Business & Strategy Committee is a creature of the consolidated RDA. The parties have contractual obligations to share the information. GRNSW's entitlement to it is via its agent Racingcorp. On my understanding, were the documents released, the contractual obligations relating to the supply of the information to GRNSW would remain in place, and the supply would still be required.

128 Clause 7(c)(ii) however, only requires that one of the two alternatives it posits be satisfied; i.e. the release could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. In this case, the first is satisfied, and the minutes are exempt under clause 7(c).

129 Turning to the Deed of Accession, Co-operation and Amendment, amending the RDA, in his statement Mr Robert Nason, said that - "The RDA Amending Documents contain information that is confidential in nature, has commercial value to Tabcorp and which relates to Tabcorp's business, professional, commercial or financial affairs. Because they were executed after the Original RDA Agreement was made public in 1997, the information that is contained in the RDA Amending Documents was not disclosed by that means. By way of example, the RDA Amending Documents contain information relating to: - restrictions that are imposed on Tabcorp's business activities (including restrictions on new business ventures, advertising, pooling and product offerings); - other obligations on Tabcorp (for example, in relation to the payment of fees to Racingcorp, above and beyond the fees that were set out in the Original RDA Agreement); - past disputes between Tabcorp and NSW Racing Pty Ltd (as Racingcorp was once known); and - the takeover of TAB by Tabcorp."

130 Under cross-examination Mr Nason was referred to a number of published documents which he conceded revealed the effect, if not the terms, of provisions contained in the RDA amending documents. These included: - A media release from TAB Limited dated 3 April 2003 advising of an amendment to the RDA involving the removal of provisions which enabled the industry to take a stake in certain business developments by TAB, and an increase in the product fee paid to the industry under the RDA. - Tabcorp's Bidders Statement on its offer to purchase TAB Limited shares in 2004. This included a detailed analysis of risks associated with the bid including a discussion of some requirements of the RDA. - Tabcorp's supplementary bidder's statement where similar risks were also disclosed. - Annual Reports from Racing NSW, GRNSW which disclose in significant detail the sources and amounts of funding they receive via Racingcorp in sufficient detail, as Mr Marzik and Mr Simpson, for the details of the revenue split and payments made under the consolidated RDA to be calculated in the light of other available information. - The Cameron report which gives a breakdown of fees paid to the racing codes based on information provided by Tabcorp.

131 Mr Nason said that the deed contains commercial information not in the public domain, the release of which would be harmful to Tabcorp's operations. He acknowledged that the original RDA was released to the public prior to TAB's privatization. He was unable to say whether that release prejudiced TAB's operations, it being before his time. He was referred to the various documents outlined above which disclosed information as to payments made under the consolidated RDA, and which refer to amendments over time.

132 With respect to the Tabcorp's offer documents on the purchase of TAB, he agreed that it disclosed commercial risks associated with the purchase of TAB, but made the point that it did not disclose provisions 'of a more specific commercial nature.' He instanced machinery provisions 'about how things are calculated and what the practical effect of them is.' While the risks identified were correct, the details associated with them were not described, nor were the mechanics of the contract dealing with them outlined in detail.

133 Despite the fact that details of the effect of the deed were in the public domain, I understood Mr Nason's evidence to be that details of the contractual provisions and mechanisms giving rise to those results are not in the public domain, and that their release would disadvantage Tabcorp commercially. That information he said was confidential and of commercial value to Tabcorp. In his affidavit Mr Nason said that Tabcorp has a number of competitors, including corporate bookmakers licensed in the Northern Territory who conduct internet and telephone wagering, as well as registered bookmakers in NSW and Victoria. He said that if the deed were released the information would no longer be confidential, and it value to Tabcorp would be 'diminished or destroyed.' 'Tabcorp's business would be adversely affected, by reason of the fact that the disclosure of such documents would provide others, including Tabcorp's competitors, with intimate details of Tabcorp's business arrangements. Most significantly, a disclosure of the RDA Amending Documents would provide third parties, including Tabcorp's competitors, with details of restrictions that are imposed on Tabcorp's businesses. This information would be extremely useful to one of Tabcorp's competitors, who might seek to potentially use it to their advantage (and Tabcorp's detriment). Third parties would not otherwise be able to obtain the information, other than as the result of an unlawful disclosure of the RDA Amending Agreements.'

134 In their evidence both Mr Marzik and Mr Simpson were cross-examined as to their knowledge of the terms of the deed, and as to which of its provisions were in the public domain. Both agreed that it would be possible to determine how much Racingcorp was paid under the consolidated RDA by aggregating the fees and income which the racing codes separately report receiving. Mr Simpson said that he had not read the agreements and deed in full, but accepted (having been shown various public disclosures) that product fee had been disclosed in the TAB press release of 3 April 2003. Mr Simpson said that to this knowledge the terms of the deed were not in the public domain.

135 I have read the confidential copy of the deed provided to the Tribunal. It is not an easy or accessible document. Annexed as a schedule to it are the RDA agreements as amended. The document is over 100 pages in length and makes detailed and specific provisions regulating the relationship between the parties. It contains detailed and complex provisions regarding the financial and other responsibilities of the parties, including provisions affecting the meaning (and calculation of) various fees and charges payable under the agreement, and the impact of various taxes and duties on them. It makes provision for a variety of future eventualities and contingencies which have effected, or might effect, the relationship between the parties.

136 Having read the deed I accept that while some information as to the effect of deed is in the public domain, that information is no more that a brief and simple summary of the outcome of some of the complex and confidential provisions of the deed. For example, the information in the public domain as to the income derived by the racing bodies, via Racingcorp, does not disclose how those fees are actually calculated, other than in the broadest terms. It does not disclose the contingencies which affect the calculation. The information in the public domain is reminiscent of giving the result of an unknown, but obviously complex calculation, in which the devil is in the detail.

137 I accept Mr Nason's evidence that the deed contains information of value to Tabcorp the value of which could reasonably be expected to be diminished or destroyed if disclosed. The deed therefore is exempt under clause 7(1)(b).

138 I also accept that the deed contains information about the business, commercial and financial affairs of Tabcorp which if disclosed could reasonably be expected to have an unreasonable adverse effect on its affairs. It is therefore exempt under clause 7(1)(c).

139 In the course of preparing these reasons I spent many hours in an effort to see whether it is practicable to release a redacted copy of the deed, given that the original RDA upon which some of it is based is in the public domain. Section 24(5) of the FOI Act provides that: '(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.'

140 To release redacted copy of the document would be a difficult and complex task. What would be left would be the remnants of the original RDA, which is already in the public domain, in an unintelligible form. I have concluded that it is not practicable to release a redacted copy of the document.

141 I conclude that GRNSW's documents number 4, 5, and 6 are exempt under clause 7.

Internal Working Documents 142 OLGR asserts that the internal working documents exemption in clause 9 applies to all the OLGR documents apart from documents A4 -A8 and 40. There is considerable overlap between the documents said to be exempt under this clause and those I have found to be covered by legal advice privilege.

143 GRNSW also relies on clause 9 with respect to its documents 1-3, each of which is a letter from its CEO to Mr Whelan at OLGR.

144 Clause 9 provides: (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material.

145 In reality the determination of whether this exemption properly applies to the documents in issue depends on an assessment of whether release of the documents would on balance be contrary to the public interest. There is no dispute that the documents contain opinion, advice and recommendations generated in the course of, or for the purpose of, the decision-making functions of the Government, the Minister or OLGR, concerning the development and implementation of the racefields legislation.

146 Whether or not there release is contrary to the public interest requires a balancing of competing public interests. In undertaking that process I accept, for the reasons already given, that consultative processes surrounding the working party and its input into the development of the racefields regulation was confidential.

147 In General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 McColl JA (with whom Handley JA and Hodgson JA agreed) said (at [146]) in relation to clause. 9: 'The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": O'Sullivan v Farrer (at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ). Determining where the public interest lies is a question of fact and degree: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 395."

148 In doing so, however, McColl AJ noted at [151] that: '… the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters.'

149 OLGR acknowledges that the fact that the documents in issue were developed at a high level, and relate to 'material that is the subject of ongoing debate and controversy' is not itself enough to sustain a claim for exemption under clause 9. OLGR also acknowledges that the racefields legislation has now fully commenced, and that the decision making processes to which the documents relate has now concluded.

150 Despite this OLGR submits that the following factors point to a strong public interest in the documents being exempt. 'The development of legislation is of equal if not greater importance to the Westminster system of government than the preparation of parliamentary responses and there is a commensurate public interest in protecting that process (see McKinnon). The ultimate form of the Amendment Act and the Regulations are subject to Parliamentary scrutiny, but the Minister takes responsibility for the form in which they are introduced or tabled in Parliament. There is therefore a public interest in allowing the Minister to undertake a confidential consultation process with the racing control bodies, which are both stakeholders and the proposed regulators (Chapman). The kind of confidentiality that would have applied had the consultative process been undertaken in the course of a series of meetings with the Minister was essential to the effectiveness of the consultation, yet there were sound administrative and practical reasons why the input arising from that consultation process needed to be reduced to writing. There is a public interest in ensuring that confidential consultations of this kind remain open and are also committed to writing (McKinnon). Although the Amendment Act and Regulations have been finalised, the Minister and the Office regularly consult with the racing control bodies about the development and operation of legislation affecting the racing codes … so that there is a public interest in protecting the ongoing free flow of ideas and options between these interested parties in order that the best possible decisions in this area are achieved (Waterford).

151 Central to OLGR's argument is the assertion, based on the evidence of Mr Marzik, Mr Simpson, and Mr V'Landys, that the full and frank input made to the working party by the racing control bodies would be inhibited, if the deliberations of the working party were disclosed.

152 This was certainly Mr Marzik's view, although he acknowledged that he was aware, as a public servant, that advice he gives to the Minister could be released under FOI. He said that despite this he always gives unexpurgated advice to the Minister, "but sometimes the advice and the document might be framed in the context that it will not be released under the FOI because it will be exempt."

153 Mr Simpson when asked about the potential impact on GRNSW's participation in future working parties, if the documents in issue were released, said that GRNSW's "willingness to participate in a full and frank manner would be diminished." When asked to explain this, he said that he would be reluctant to express views on the spot in brainstorming sessions, and would expect GRNSW's contributions to be more considered, with time taken to reflect on them.

154 From Mr Simpson's evidence I concluded that GRNSW would be less spontaneous and more considered in its participation in working parties, if not assured that those deliberations were confidential. I am not persuaded from Mr Simpson's evidence that the views expressed by GRNSW would necessarily be less full and frank.

155 In his statement Mr V'Landys said that if communications within the working group were not kept confidential Racing NSW would be reluctant to divulge confidential information to OLGR in the future, and would limit open communication between them in future consultations, such as the working group. Given the strong public advocacy of racefields legislation by Racing NSW and Mr V'Landys, which was broadly acknowledged during the hearing, I have difficulty in accepting these untested assertions from Mr V'Landys. His public stance on the issues is redolent of strong advocacy. The prospect that Racing NSW would be constrained in its participation in the working party by the potential for its views to be made public is unconvincing.

156 The various public interests identified by OLGR in support of the exemption lose considerable force when it is remembered that the racefields legislation has now been passed and is in operation. If the consultation process were ongoing the arguments would have considerably more force: Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588, at [58]. In reaching that conclusion I do not doubt that the introduction of the racefields regime remains controversial to some of those affected by it. It provides the factual substratum to litigation concerning it, and to commercial relationships affected by it. Nonetheless, the public interest in protecting the consultations has been substantially diminished by the racefields legislation commencing operation.

157 Additionally, the Applicant points to the contractual relationships between GRNSW (and the other racing control bodies) and Tabcorp as raising a public interest in disclosure. The racing control bodies are under a contractual obligation to maximise Tabcorp's returns, and to consult with it. The practical reality of their financial dependence on Tabcorp also points to a correspondence between their apparent interest and those of Tabcorp. Because the introduction of the racefields legislation had the potential to significantly impact on Tabcorp's operations, there is, in my view, a strong public interest in the having the input of the racing control bodies, who were contractually tied to and financially dependant on Tabcorp, into the development of that legislation open to scrutiny.

158 While I accept that GRNSW and the other racing control bodies have statutory duties relating to the maintenance and advancement of their respective racing codes and industries, they also have contractual and financial relationships which bind them to Tabcorp. It is no doubt true that the racefields legislation has had the effect of reducing that dependency and providing the racing codes with new streams and sources of income. This broadening of their sources of income can be viewed as pointing to the GRNSW giving frank and fearless advice in the course of the working party's deliberations. That, however, represents the results of racefields legislation as introduced by the Government, and does not give a true indication of the input of GRNSW and the other racing control bodies to the working party. The fact that GRNSW is a commercial body, independent of government but with close financial and contractual ties to Tabcorp, creates a strong public interest in its input to the working party being open to public scrutiny, now the racefields legislation is in operation.

159 When these competing public interests are weighed it is my view that the balance points to disclosure of the internal working papers of and relating to the working party, unless those documents are otherwise exempts.

160 Separate mention should be made of OLGR's document 42 - the letter from Mr V'Landy's to the Minister - which was written after the commencement of the Racing Administration Amendment (Publication of Race Fields) Regulation 2008.

163 As such I do not accept that it satisfies the requirements of clause 9(a). The internal working documents exemption therefore does not apply.

164 I conclude that the following documents are not exempt under clause 9:

• OLGR's documents numbered A1, A2, A3, A10, 2, 3, 4, 5, 6, 7, 8,9, 10, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25B, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 42 and 43.
• GRNSW's documents 1, 2 and 3.

Confidential Information 165 Clause 13 of Schedule 1 provides the following exemption: 'A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest.'

166 OLGR relies on the confidential information exemption with respect to documents A1 - A3, 3 - 15, 17, 18, 20 - 25B, 28, 31, 35, 36, 37, and 42. I have already found many of those documents exempt under clause 10. The remainder, apart from document 42, are exchanges of information related to the operation and considerations of the working party.

167 GRNSW relies on the confidential information exemption with respect to all its documents. Documents 1-3 are submission from the CEO to Mr Whelan at OLGR relating to the racefields legislation as part of the working group processes. GRNSW relies on clause 13(b) with respect to these documents. Documents 4 and 5 are minutes of the Business and Strategy Committee meetings held in March and April 2008 while document 6 is a copy of the deed of accession. GRNSW relies on clause 13(a) with respect to the committee minutes, and both limbs of the clause with respect to the deed of accession.

168 It is convenient to consider these claims for exemption in four categories: - The exemptions claims by OLGR (apart from document 42) and those claimed by GRNSW in documents 1-3. These are all exchanges or submissions relating to the operation and functions of the working party. - OLGR's document 42 - The consolidated RDA - The Business and Strategy Committee Minutes.

169 The Exchanges and Submissions - OLGR and GRNSW each rely on clause 13(b) with respect to the exchanges and submissions. It is clear from all the evidence relating to the establishment and operation of the working party that those from OLGR who convened it, and the participants from GRNSW and Racing NSW regarded its processes and the information they provided in the course of its work as confidential. I accept that this was the case.

170 In order for such information to be exempt under clause 13(b) two further requirements need to be met. The agencies need to establish first that disclosure could reasonably be expected to prejudice the future supply of such information to the Government and, secondly, that disclosure would be contrary to the public interest.

171 In Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180 at 190 (Bowen CJ and Beaumont J), the Full Court held that the words "could reasonably be expected to" 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" .

172 In determining whether disclosure of the information would "prejudice" the future supply of such information to the agency, the test is not whether the particular confider whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future: McMahon v Director General, Department of Fair Trading [2003] NSWADT 164 at [25].

173 In this case the relevant information in issue is submissions and interchanges made by and between regulatory authorities on changes to legislation or regulations. The evidence of Mr Marzik, Mr Simpson and Mr V'Landys was that, if this information is disclosed, the quality of their participation and candour in future working parties would be constrained. I have already discussed that evidence in some detail and accept that, should disclosure occur, GRNSW's input might be more considered and less spontaneous. That does not mean GRNSW will be less candid or diligent in the pursuit of its interest or those of the industry it represents. It will still provide the information, albeit in a more considered form. Indeed, given GRNSW's role and statutory responsibilities to its industry, it is difficult to conceive of circumstances whereby disclosure would stop its putting its views on important questions affecting the legislation governing the industry's operation and its financial viability. To do so would breach its statutory responsibilities. The same can be said with respect to Racing NSW. With respect to OLGR itself, Mr Marzik, in his evidence, made it clear that disclosure would not detract from the quality of the advice he, as a public servant, gives to the Minister.

174 Given those conclusions I do not consider that, if the information is disclosed, it could be reasonably expected that GRNSW and the other racing bodies would refuse to supply similar information in the future. It follows that I do not accept that the exemption in clause 13(b) applies to these documents.

175 I would add that, were I incorrect in this, I would nonetheless not be satisfied that disclosure is contrary to the public interest. The assessment of whether the release of information to the public is an objective one: Macquarie University v Howell [2009] NSWADTAP 12 at [19]. OLGR and GRNSW identify the public interest in the Minister being able to confidentially consult with the racing codes about proposed legislative reforms, which would be compromised should the information be disclosed. It argues that release of its submissions may - '… result in confusion or misunderstanding by the public as to why GRNSW adopted the various views it did in relation to the issues addressed in the submissions, as the submissions themselves do not include detailed explanations as to the reasons for the views GRNSW expressed in each submission. For example, GRNSW's position as to the basis upon which the relevant racing control bodies should be able to impose a fee on an applicant for authorisation is not the same in each of the submissions.'

176 At their heart both OLGR's and GRNSW's primary submissions rely on an acceptance of their assertions that the supply of information to the Minister, in relation to future, proposed amendments, will be jeopardised if the information is released. I am not persuaded of this. Additionally, it must be remembered that the racefields legislation is now in force. Were it still in the course of development a public interest in maintaining the confidentiality of the working party consultations would be manifest. As the legislation is now in operation, however, the need to protect the confidentiality of that process is not clear.

177 Additionally, I agree with the Applicant that the nature of the financial and contractual relationships between Tabcorp and the racing codes, in the circumstances, gives rise to a public interest in having the racing codes submissions on the racefields legislation disclosed. GRNSW submitted that there was no evidence that it had in any way acted inappropriately or improperly in making submissions to the working party, or that its submissions were affected or influenced by its contractual and financial relationship with Tabcorp. While I accept this, the proposition, in my view, misconceives the public interest in issue which is in that of transparency and public accountability.

178 The reality is that GRNSW has a close contractual and financial relationship with Tabcorp, with attendant obligations to each other. GRNSW also has statutory obligations to its industry. In the context of its submissions to and participation in the racefields working party, that relationship can give rise to a perception that GRNSW was influenced or affected by its relationship with Tabcorp. That perception arises from the very nature of the relationship. It is not necessarily a reality. In my opinion that perception gives rise to a public interest in the information being disclosed, so that the participation by the racing codes is transparent.

179 When these competing public interests are weighed the balance is in favour of disclosure.

180 Document 42 - I have already outlined the nature of document 42 in paragraphs 161 and 162 above.

182 To be exempt under clause 13(b) the document must have been obtained in confidence, disclosure must reasonably be expected to prejudice the future supply of such information; and the disclosure must, on balance, be contrary to the public interest. I have already made a number of observations on the willingness of the racing bodies to provide information to government in pursuit of their perceived interest. While Mr V'Landys in his affidavit indicated that Racing NSW would be reluctant to divulge confidential information to OLGR, if confidential communication were disclosed, his own public advocacy in the interest of Racing NSW point to the contrary conclusion. For substantially the same reasons as those given in paragraph 176 above, I am not satisfied that, if document 42 is released, the future supply of such information would be prejudiced.

183 The Consolidated RDA - With respect to this document GRNSW relies on clause 13(1)(a) i.e. that it contains matter the disclosure of which would found an action for breach of confidence.

184 In Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277 the Tribunal considered what was necessary to satisfy the requirements of clause 13(a): "52 In Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279 it was held that the words "for an action of breach of confidence in the Queensland FOI Act should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: (i) a cause of action for breach of an obligation of confidence; (ii) a cause of action for breach of a contractual obligation of confidence; (iii) a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence. 53 It was further held that the test of exemption was to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff in respect of information held by the agency to which the relevant FOI application was made. If the hypothetical cause of action was an equitable action for breach of confidence, five matters had to be established: first, the information must be capable of being specifically identifiable as information which is secret rather than generally available; second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; third, the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment. 54 In Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434, the majority held that the Federal equivalent of clause.13(a) conferred exempt status on "a document which contains confidential information received under circumstances importing an obligation of confidence, without regard to those considerations of public policy [such as "just cause" and "clean hands"] which courts have allowed an influence in determining whether to grant or withhold remedies for "breach of confidence" in exercise of equitable or common law jurisdiction." (See Jenkinson J at 438 and also Sweeney J at 435.)"

185 The Consolidated RDA contains provisions prohibiting parties to it disclosing the provisions of the deed or of information exchanged between them for the purposes of the deed. While general outlines of the effect of some of the provisions of the Consolidated RDA are in the public domain, those details do prevent provisions of the deed being identified as relevantly secret and confidential to the parties. Those confidential provisions are not trivial or generally known. There is a contractual obligation on GRNSW to keep the provisions of the Consolidated RDA confidential. There is evidence before me from Mr Nason, Mr Simpson and Mr V'Landys that disclosure of the consolidated RDA by GRNSW is not authorised by the other parties to it. I accept that evidence. I also accept the evidence of Mr Nason that Tabcorp would suffer a detriment, in terms of prejudice to its business, if the consolidated RDA were disclosed.

186 I accept that the Consolidated RDA contains information which would found an action for breach of confidence. It is therefore exempt under clause 13(a).

187 The Business and Strategy Committee Minutes - Meetings of the Business and Strategy Committee are conducted on a confidential basis. Matters discussed at those meetings relate to the commercial and business affairs of Tabcorp, RacingCorp and the three racing bodies, including GRNSW.

188 Mr Nason gave evidence that the Business and Strategy Committee is a Committee, created under the terms of the Consolidated RDA, of representatives of Tabcorp, Racing Corp, and of the racing codes. It has a number of consultative functions. It provides a forum for the discussion of affecting wagering and gaming, such as Tabcorp's rules of wagering. It makes recommendations with respect to the proposed strategies of members; it receives management reports from Tabcorp and audited statements of fees payable under the consolidated RDA.

189 To be exempt under clause 13(b) a document must have been obtained in confidence, disclosure must reasonably be expected to prejudice the future supply of such information; and the disclosure must, on balance, be contrary to the public interest. The evidence clearly establishes that the meetings of the Business and Strategy Committee are treated by the partiers as confidential. As they relate to an exchange of information between the parties to the Consolidated RDA under that agreement, the Consolidated RDA prohibits parties to it from disclosing that information.

190 The information exchanged at those meetings is secret and confidential to the parties. It is not trivial or generally known. There is a contractual obligation on GRNSW to keep the information confidential. Mr Nason said that if the minutes of those meetings were to be disclosed, Tabcorp would be reticent about the nature and extent of the commercially sensitive information it shares with the other participants at those meetings. Mr Simpson gave evidence that any reduction in the information Tabcorp shared with GRNSW at such meetings would have a significant impact on GRNSW's ability to ensure that it is providing its consumers with racing products that they want, and so grow the greyhound racing industry in NSW.

191 As a result I accept that the Minutes contain information which would found an action for breach of confidence. It is therefore exempt under clause 13(a).

192 I conclude that the following documents are not exempt under clause 13:

• OLGR's documents numbered A1 - A3, 3 - 15, 17, 18, 20 - 25B, 28, 31, 35, 36, and 37.
• GRNSW's documents numbered 1 - 3.

193 GRNSW's documents 4 -6 are exempt under clause 13

Documents concerning operations of agencies 194 Clause 16 of Schedule 1 provides: A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: (i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or (ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or (iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or (iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or (v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and (b) would, on balance, be contrary to the public interest.

195 OLGR's document 42 is a three page letter dated 8 July 2008 from Mr V'Landys to the Minister which the agency claims is exempt under clause 16.

196 I am unable to see how the release of this letter could be reasonably expected to have any of the effects specific in sub-clauses (a) (i), (ii), (iii) or (v).

198 As a result document 42 is not exempt under clause 16.

Summary 199 Set out below are two tables which summarise the conclusions I have reached with respect to these the claimed exemptions on both applications. In both tables I have adopted the following conventions: * indicates that the exemption was not claimed NC-OE means that the exemption was claimed but was not considered because the document was otherwise exempt E means the document is exempt under the relevant clause. NE means that the exemption claimed was not upheld. PE means partially exempt.

200 This is the Table with respect to OLGR's documents: Clause 1 Cabinet Clause 2 Clause 7 Business Affairs Clause 9 Internal Working Docu-ments Clause 10 Legal Professional Privilege Clause 13 Confidential Information Clause 16 Operation of Agencies Executive Council A1 * * * NE * NE * A2 * * * NE * NE * A3 * * * NE * NE * A4 * * * * E * * A5 E * * * * * * A6 E * * * E * * A7 E * * * E * * A8 * * * * E * * A9 E * * NC-OE * * * A10 * * * NE E * * 2 * * * NE * * * 3 * * * NE * NE * 4 * * * NE E NE * 5 * * * NE * NE * 6 * * * NE E NE * 7 * * NE NE * 8 * * * NE E NE * 9 * * * NE E NE * 10 * * * NE * NE * 12 * * * NE E NE * 13 * * * NE PE NE * 14 * * * NE PE NE * 15 * * * NE PE NE * 17 * * * NE PE NE * 18 * * * NE E NE * 19 * * * NE * * * 20 * * * NE * NE * 21 * * * NE E NE * 22 * * * NE E NE * 23 * * * NE PE NE * 24 * * * NE E NE * 25B * * * NE NE NE * 26 * * * NE E * * 28 * * * NE E NE * 29 * * * NE E * * 30 * * * NE E * * 31 * * * NE E NE * 32 * * * NE E * * 33 * * * NE E * * 34 * * * NE E NE * 35 * * * NE E * * 36 * * * NE E NE * 37 * * * NE E NE * 38 * E * NC-OE NC-OE * * 42 * * * NE * NE * 43 * * * * PE * *

201 It can be seen that I have found documents A1, A2, A3, 2, 3, 5, 7, 10, 19, 20, 25B, 32 and 42 not to be exempt documents, while documents 13, 14, 15, 17 and 43 are partially exempt.

202 This is the Table with respect to GRNSW's documents: Document No Clause 7 Business Affairs Clause 9 Internal Working Documents Clause 13 Confidential Information 1 * NE NE 2 * NE NE 3 * NE NE 4 E * E 5 E * E 6 E * E

203 I have found documents 1, 2 and 3 not to be exempt.

The Residual Discretion 204 The Applicant submitted that with respect to those documents which I found exempt I should exercise the residual discretion to release them.

205 OLGR in its supplementary submissions invited me to conclude that there is no residual or override discretion.

206 It can be seen that the OLGR documents which I have found to be exempt are either restricted documents or documents exempt on the basis of legal professional privilege. There is binding authority that the residual discretion does not apply to restricted documents (IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79) or to documents found to be subject to legal professional privilege (McGuirk v University of NSW [2009] NSWCA 321). In those circumstances there is no room in this matter for the exercise of the residual or override discretion. I therefore decline OLGR's invitation to consider whether or not on a proper interpretation of s 25 of the Freedom of Information Act 1989 there is such discretion in the Tribunal.

207 The same cannot be said of GRNSW's documents 1, 2 and 3, which have found exempt under clauses 9 and 13. They are the minutes of the Business and Strategy Committee meeting and the Consolidated RDA. They relate to the commercial arrangements and operations between Tabcorp, GRNSW, HRNSW, Racing NSW and Racing Corp. I have already found that there is a potential for significant commercial harm to the interests of those parties if those documents are released. While I have accepted that the public interest in transparency requires that the exchanges between GRNSW and OLGR with respect to the development of the racefields regulation be disclosed, because of GRNSW financial and commercial ties to Tabcorp, I do not think that the same pubic interest requires the disclosure of these documents. They relate to the mechanics, details and operations of those commercial relationships. I accept that those commercial interests would be prejudiced if the documents were released. In my view the public interest requires that those commercial ties be acknowledged and declared, but not that their details and operations be disclosed, especially where there is a real potential from harm as result of disclosure.

208 In those circumstances I refuse to exercise the residual discretion.

Conclusion 209 With respect to the review of OLGR's decision I will vary the decision made on internal review to determine, for the reasons outlined above, that 30 days after the publication of these reasons the Applicant have: a. Partial access to documents 13, 14, 15, 17, 23 and 43. b. Access to documents A1, A2, A3, 2, 3, 5, 7, 10, 19, 20, 25B and 42.

210 With respect to the review of GRNSW's decision I will vary the decision made on internal review to determine, for the reasons outlined above, that 30 days after the publication of these reasons the Applicant have documents 1, 2 and 3.

211 I think it appropriate that I also make an order under s 75 of the Administrative Decisions Tribunal Act 1997 prohibiting the publication of paragraphs 161, 162, 181 and 197 of these reasons to any person apart from OLGR. Those paragraphs outline and discuss confidential evidence given on OLGR's behalf to the Tribunal.

15/04/2010 - Deletion of reference to document 32 - typographical error - Paragraph(s) Coversheet and paragraph 209

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.