Gold and Copper Resource Pty Limited v NSW Trade and Investment

Jurisdiction

1. There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction. In addition there is no dispute that the application was filed within time, as the matter was lodged within the period provided for by the GIPA Act in respect of a Tribunal Review following a review by the Information Commissioner. The application sets out the following grounds: The Information and Privacy Commission NSW has reviewed the original Agency Decision and NCAT now presents the final medium of review.
2. The Tribunal infers that the applicant is seeking to pursue its statutory remedies in respect of access to information.

The Legislative Provisions

1. The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 the following outline of the provisions is provided: 5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
3. There are two aspects or elements of the GIPA Act which the respondent relied upon in withholding information from the applicant. The conclusive presumptions as listed in Schedule 1 of the GIPA Act which is titled: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure, and the Table to section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied.
4. Relevantly section 14 provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
5. The Table to section 14 provides the various criteria or considerations referred to in section 14 (2). The Table lists seven areas whereby relevant public interest considerations against disclosure are set out. Relevant to this application, the Agency relied on the provisions relating to: revealing personal information. The section provides: 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information,
6. As indicated above the respondent predominantly relied upon the Schedule 1 grounds (for which there is a conclusive presumption against disclosure) and relied upon clauses relating to Legal Professional Privilege (Clause 5), Cabinet Information (Clause 2), and matters pertaining to Contempt (Clause 4).
7. The relevant provisions of the GIPA Act relied upon by the respondent in respect of the conclusive presumption against disclosure are as follows: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 2 Cabinet information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents: (a) a document that contains an official record of Cabinet, (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e). (2) Information contained in a document is not Cabinet information if: (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence. (3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1). (4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. (5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet. 4 Contempt It is to be conclusively presumed that there is an overriding public interest against disclosure of information the public disclosure of which would, but for any immunity of the Crown: (a) constitute contempt of court, or (b) contravene any order or direction of a person or body having power to receive evidence on oath, or (c) infringe the privilege of Parliament. 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. (Emphasis added).

Scope of release in respect of 97 documents

1. In the revised decision under review, as at the date of the final hearing the following documents had been fully released: Documents: 5, 6, 7, 9, 13, 14, 20, 23, 44, 73, 75, 90, 91, 95 and 96.
2. This situation was identical to the original decision, in that there were no additional documents that had been considered for complete release over the intervening 12 months that the parties were negotiating. However documents 95 and 96 were not included in the original decision and subsequently were fully released.
3. In respect of partial release, as at the date of final hearing (including matters canvassed in the confidential session on day one of the hearing) the following documents had been partially released: Documents: 1, 2, 11, 25, 29, 45, 56, 70, 71, 74, 76, 77, 78, 79, 88, and 89.
4. This situation differed from the original decision in that other than documents 1 and 2, the other 14 documents had been fully withheld as at the date of the original decision.
5. The following documents had been fully refused for release by the respondent. Documents: 10, 12, 15, 16, 17, 18, 19, 21, 22, 24, 26, 27, 28, 30, 31, 32, 33, 36, 38, 39, 41, 43, 46, 47, 48, 49, 50, 53, 54, 55, , 57, 58, 59, 60, 61, 62, 64, 65, 66, 67, 69, 72, 80, 81, 82, 83, 84, 85, 86, 87, 93, 94 and 97. Documents 34 35, 37, 40, 42, 51, 52, 63, 68, 92, were withheld from the applicant as they were no longer within scope and therefore do not constitute part of the final decision (see following two paragraphs).
6. Whilst the matter was before the Tribunal, the respondent revisited the matters pertaining to the scope of the applicant's application for information, in accordance with observations and recommendations of the Information Commissioner (see paragraph 8 above). As a result of that review the following documents were deemed fully or partially out of scope. Fully out of scope: 4, 8, 34, 35, 37, 40, 42, 51, 52, 63 (as applicant no longer pressed for residue of document), 68 and 92.
7. The following documents were now deemed partially out of scope. Partially out of scope: 28, 29, 36, 38, 39, 41, 45, 46, 47, 48, 49, 50, 53, 54, 55, 56, 57, 58, 59, 60, 61, 64, 65, 66, 67, 72, 80, 81, 82, 83, 84, 85, 86, 87, 93 and 94.
8. Whilst the applicant identified the issue concerning the narrowing of scope in their initial written submissions, this matter should in my view only be visited after the basis of withholding the data is examined.

Hearing of matter before the Tribunal

1. The matter was heard over a number of sittings of the Tribunal. Both the applicant and respondent were represented by Counsel and instructing Solicitors.
2. The basis of the respondent's claim could be described through the following three themes relating to the three main basis under the GIPA Act for withholding the information. Material was withheld because it was subject to legal professional privilege, it was characterised as cabinet information, and was subject to parliamentary privilege. I observe that some of the claims overlapped in that there was often reliance on more than one ground, but that it was agreed that all relevant grounds needed to fall away in order for the Tribunal to release the relevant information under the GIPA Act.
3. Whilst there had been a number of consent orders made for release of documents prior to hearing (as was the preferred approach of the respondent), a further suite of consent orders were made to release documents.
4. At the beginning of the hearing the respondent submitted that the characterisation of the e-mails and their attachments and whether attachments were caught within a scope which identified an e-mail, could be addressed as follows. The Freedom of Information Act 1989 talked about documents in considering release. The difference between the GIPA Act and the Freedom of Information Act 1989 is that the GIPA Act refers to 'information' rather than documents. For these reasons the nature of the information or data and its context could be utilised to ascertain whether it was within the scope of the request.
5. The respondent submitted that the GIPA Act provides examples as to how and why such an approach should be taken to information. Section 74 provides an effective 'redaction' provision whereby information not relevant (or within scope) can be excised from the information in the form produced to an applicant. Section 74 provides: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
6. As a result the respondent submitted that it's correct approach was having considered e-mail chains, where information is out of scope of the application, the information has been redacted. The respondent submitted both at hearing and in written submissions that the approach that they had undertaken to determine scope, was as follows. As the application sought e-mails that 'refer or relate to both the Mining Amendment (Development Consent) Bill 2013 and Gold and Copper Resources; then the use of the words 'both as well as 'and' conveys that the request is seeking information that relates to both entities or subjects occurring within that information jointly or together.
7. Additional criteria concerning the terms 'court' and 'court proceedings' in an e-mail or chain of e-mails, but the subject matter relates to the Bill, the respondent determined that the entire chain is within scope. Without focusing further on the issue of scope I note that the respondent submitted that based on the application before the Tribunal, it is not the Tribunal's role to review the 'not within scope' argument or submission.
8. In reply the applicant accepted that they cannot challenge material not within scope. Emails are examined to determine what is their content and where whole documents have been removed from scope by being broken into their constituent parts, because of the conjunction within the scope ('and') then Gold and Copper has been segregated from the Bill. It was submitted that an email that looks at the two items together is within scope.

Legal Professional Privilege and waiver grounds.

1. The respondent filed both 'open' and 'closed' or confidential evidence in the proceedings, and consistent with the onus being on the Agency to justify or substantiate its decision, the respondent took the lead on the substantive hearing.
2. In open hearing the respondent took the Tribunal through their submissions on the legal professional privilege (LPP) claim. At paragraphs 24-28 inclusive of their 12 October 2015 submissions the respondent set out the law and the relationship of the Evidence Act 1995 to the matter. It was submitted that section 131A of the Evidence Act 1995 enlivens sections 118 and 119. The relevant provisions being: 131A Application of Part to preliminary proceedings of courts (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, 1C 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.
3. Section 118 and 119 of the Evidence Act 1995 provide: 118 Legal advice 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. 119 Litigation 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 between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
4. All of these three sections are situated within Part 3.10 of the Evidence Act 1995. It was submitted that the Tribunal should have regard to the approach in the case of AIN v Medical Council of New South Wales [2015] NSWCATAP 241, as to how clause 5 of Schedule 1 of the GIPA Act should be applied. At paragraph 22-25: Evidence in support of privilege claim 22. The evidence before the Tribunal was also before the Appeal Panel, including the transcript of the hearing in the Tribunal. Very little of that evidence was directed towards the Medical Council's privilege claim. 23. There was evidence that one of the Medical Council's in-house lawyers, who the Tribunal referred to as Ms H, had created some of the documents in issue and had had carriage of Medical Tribunal proceedings concerning the appellant, to which some of the information in the documents related. She did not give evidence. The respondent's evidence was given by the Medical Council's acting director of legal services. 24. Mr Brennan, for the appellant, submitted that the respondent had the onus of proof and that there was no reason why Ms H could not have given evidence where her evidence was relevant to factual questions affecting privilege (such as the dominant purpose for which a document was prepared). Ms Davidson, for the Medical Council, said that it was explained in the transcript of the proceedings below that Ms H was on long service leave at the relevant time. 25. Whilst it is unfortunate that the officer with greatest knowledge of some of the relevant factual matters was on leave around the time of the hearing, the Tribunal can only make findings of fact on the basis of evidence or, more broadly, on the basis of the "relevant factual material" before it (Administrative Decisions Review Act 1997 (NSW), s 63(1)). Where an agency claims that certain information would be privileged from production in legal proceedings on the ground of client legal privilege, it has the onus of establishing this (see GIPA Act, s 105 and Sch 1, cl 5). This means it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant persons are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon. Whilst some of these matters can, in some cases, be found in or inferred from the document the subject of the privilege claim, it is almost always necessary to provide some evidence relevant to the privilege claim before it can be concluded that s 118 or s 119 applies. It is not uncommon in GIPA Act proceedings for an agency to underestimate the need for evidence to establish privilege. That occurred, to some extent, in this case.
5. In support of the above proposition the respondent relied upon the Affidavit of Nathan Laird dated 31 March 2016. It was submitted that this affidavit established a factual situation not inconsistent with the requirements set out in AIN. The respondent submitted that the evidence established the prima facie presumption of the independence of the Departmental lawyers.
6. In open evidence it was submitted that the contents of the affidavit refer to litigation instructions and this was identified at paragraphs 2, 4 and 6 of the 'Laird' affidavit further giving rise to the claim for privilege. It had been argued however that the issuing of a press release by the Minister had the effect of waiving the privilege consistent with the terms of section 122 (3) (a) of the Evidence Act. 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (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.
7. The Press Release or Media Release was tendered in evidence as the Applicant's 'Exhibit A -3'. It had been released to them as document 95 and an earlier daft as document 96 at the commencement of the first day of the hearing. In my view it is relevant to identify the contents of A3 in these reasons. The release is reproduced word for word except for redacting the mobile telephone number of the Media Officer at the conclusion of the Press Release. The Hon Chris Hartcher Minister for Resources and Energy Special Minister of State Minister for the Central Coast MEDIA RELEASE Friday 8 November 2013 BILL WILL REMOVE THREAT TO NSW MINING LEASES The Mining (Development Consent) Amendment Bill 2013 - to be debated in the Legislative Council next week - will remove the threat hanging over most if not all mining leases across New South Wales. The Bill protects the integrity of the State's mining titles regime by confirming that all leases granted to titleholders are consistent with the relevant planning consent. The NSW Government moved to eliminate any possible ambiguity about the integrity of mining titles after Gold and Copper Resources pursued court action against Newcrest's Cadia mine in Orange. The Government sought and obtained legal advice that an adverse decision in this court case could jeopardise investment and existing mines operations State-wide. Resources Minister Chris Hartcher said mining in NSW makes a major contribution to the State's economy bringing new investment and boosting regional development and job creation. "Cadia is a major, well established mine near Orange and is one of the largest private employers in the Central West region, " he said. "The mine employs over 1,000 workers drawn mostly from the local surrounding area and contributes millions each year into the Orange economy." Mr Hartcher said contrary to some suggestions in relation to the proposed changes to the law, mining leases are only issued following the provision of planning consent to develop a mine. MEDIA: Kate Loughnan (phone number)
8. The respondent relied upon the case of Fenwick v Wambo Coal Pty Ltd (No. 2) [2011] NSWSC 353 in maintaining that the release did not amount to a waiver of privilege. The disclosed draft of the media release (document 96) contained the following additional words which were eventually edited out of the document realised publically. After the word 'by' in line 1 of paragraph 2 of the final release the following relevant words appeared in the draft: 'ensuring that a development consent which only approves mining purposes can be "appropriate development consent' for the grant of a mining lease for minerals..' Other amendments and notations differ between the draft and the final. In respect of this question at paragraph 12 of Fenwick, the Court observed: 12. The question then is whether the draft letter disclosed the substance of the legal advices. It is difficult to reconcile the various cases, most of them on the previous s 122(2), as to what will constitute disclosure of the substance of a privileged communication. The balance of authority is that at least an express or implied summary of legal advice received amounts to disclosure of the substance of the advice. 13. In many cases disclosure of the conclusion of legal advice has been treated as disclosure of its substance, even though the reasoning is not disclosed. In Ampolex Limited v Perpetual Trustee Company Limited (Canberra) (1996) 40 NSWLR 12, Rolfe J rejected a submission that the substance of legal advice was something different from or greater than its effect (at 18). His Honour said that the word " substance " was not used in the then s 122(2) in contradistinction to " effect ". His Honour said: "One may say, conformably with ordinary English, that 'the substance of the advice is you will win' or 'the effect of the advice is you will win'. Each word will accommodate an expansive or restricted version of what the advice says and, significantly for present purposes, 'substance' is not used in s 122(2) of the Evidence Act 1995 in contradistinction to 'effect'. Accordingly, depending on the way in which the advice is structured, the 'effect' of the advice may also be its 'substance'." 14. In that case his Honour found that the public disclosure by Ampolex that " There is a dispute about the conversion ratio. Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position ", amounted to a waiver of privilege in that advice because the statement disclosed its substance (at 15 and 18). 15. In Adelaide Steamship Company Ltd v Spalvins [1998] FCA 144; (1998) 81 FCR 360 the Full Court of the Federal Court said the test of whether there had been disclosure of the substance of the evidence was a " quantitative " one which asked whether there had been sufficient disclosure to warrant the loss of the privilege (at 371). It concluded that there was disclosure of the substance of counsel's advice where, in that case, a deponent swore that counsel had made " certain recommendations " as to whether a particular issue should be pleaded in reply or whether it should be pleaded in the statement of claim, and had discussed the possibility of pleading the issue in the statement of claim with the deponent. The deponent said that following receipt of counsel's advice the decision was made to plead the matter in the statement of claim rather than in reply. This was held to be disclosure of the substance of the advice, although counsel's reasoning was not disclosed. 16. In BT Australasia Pty Ltd v State of New South Wales (No 7) [1998] FCA 294; (1998) 153 ALR 722 Sackville J held that there was a waiver by disclosure that the party had obtained an advice to the effect that the proceedings were soundly based in legal principle, had considerable strengths and had obtained a written advice that there were substantial difficulties with the State's cross-claim and good prospects of BT effectively resisting the cross-claim. This was disclosure of the conclusion of the advice, but nonetheless was found to be a disclosure of its substance. 17. Similarly, in NRMA Ltd v Morgan (No 2) [1999] NSWSC 694, Giles J (as his Honour then was) held that privilege was waived by a statement that counsel had advised that a pleading might not, in certain circumstances, permit the second defendant to claim contribution, and that for more abundant caution, leave should be sought to file a further cross-claim (at [3], [6] and [16]). His Honour concluded that the deponent had disclosed, albeit in summary form, the substance of what counsel had advised. 18. By contrast, in Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (a firm) [1998] FCA 963; (1998) 84 FCR 472 Drummond J held that privilege was not waived by a liquidator's report that stated " My solicitors have advised me that the Company has potential claims against Apogee and certain members of its management pursuant to Section 205 of the Corporations Law, and in relation to the sum of US$500,000 which was paid to Apogee and its management. " That statement did not identify further the nature of those claims. His Honour disagreed with the reasoning of Rolfe J in Ampolex that there was no difference in s 122(2) between disclosure of the substance of legal advice and disclosure of its effect. 19. In NRMA Ltd v Morgan (No 2) Giles J (as his Honour then was) noted that in Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (a firm) Drummond J had said (at 479) that there was no doubt about the correctness of the decision in Ampolex . Giles J observed that as Drummond J said that the decision in Ampolex was undoubtedly correct, his Honour could not have intended that much be disclosed by way of critical steps in reasoning. It may be that when Drummond J is reported as having said that there was " no doubt about the correctness of the conclusion in Ampolex " there was a misprint or mistake, as the rest of the passage suggests his Honour did have doubts about the correctness of the conclusion. 20. In SVI Systems Pty Ltd v Best & Less Pty Ltd [2000] FCA 1507 Einfeld J said (at [6]) that when s 122(2) referred to the substance of advice, it was not talking about the " bottom line " of the advice but to " what its content was and possibly even the reasoning which led to it ". His Honour, however, made limited reference to authority on this question. 21. In Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 McDougall J held that for the substance of an expert's report for which privilege was claimed, to be disclosed within the meaning of the then s 122(2), the disclosure must be not only of the conclusions of the expert, but the relevant factual bases of the report and the reasoning process from which the expert proceeded from those factual bases to the conclusions reached (at [72]). That view was obiter and in any event expressly confined to disclosure of experts' reports. 22. Counsel for the defendant said that the governing authority was the decision of the High Court in Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275. However, that case concerned a different question. It was concerned with principles of waiver at common law, not with s 122(3). It was there held that the public disclosure by the Government of the Government's lawyers' conclusions was not inconsistent with the Government's maintaining confidentiality in the legal opinion. The High Court did not consider s 122 and did not consider whether the press release would amount to a waiver under s 122(3). It may be inferred that had the question arisen it would have been held that s 122(2) was not satisfied if subs (3) was left out of account, but it cannot be inferred what conclusion would have been reached as to the effect of subs (3). 23. Counsel also referred to Bailey v Director General, Dept of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333. However, that case concerned a different question, relevantly whether the production of part of a document waived privilege in the balance of the document for which privilege was claimed. It is not relevant to the present issue. 24. Whether disclosure amounts to disclosure of the substance of a privileged communication involves questions of degree. In the present case the draft letter of 11 July 2008 disclosed not only what is said to be the conclusions of the legal advice received by the defendant, but the reasoning. In para (b) of the letter quoted above, it is said that the legal advice the defendant received is that lot 83 is not encumbered with the right-of-way the plaintiff claims and that the only right-of-way registered over that lot is in relation to lot 82 also owned by the defendant. That appears to be the reasoning leading to the conclusion of the advice. 25. The draft letter expressly stated that this was the legal advice the defendant received. The letter did not state that those were the defendant's own views informed by legal advice it had received (compare Ampolex at [14]). The disclosure was not analogous to the reference made to legal advice in Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd [2009] FCAFC 105; (2009) 179 FCR 323 to which the defendant referred. That decision also was concerned with waiver of privilege at common law.
9. The respondent also relied on the case of RinRim Pty Ltd v Deutsche Bank Australia Limited & Ors [2013] NSWSC 1654, concerning the import of the disclosure of the conclusion of legal advice. At paragraph 40 of RinRim the Court observed: 40. It may be accepted that the disclosure of the conclusion of a legal advice is capable of amounting to the disclosure of the substance of the advice. However, whether that is so depends upon the circumstances of the particular case at hand. It is necessary to consider the nature and extent of the disclosure as well as the nature and content of the advice in respect of which some disclosure has been made.
10. The respondent submitted that generally the reasoning of a lawyer would be included as the advice. It was submitted that the gist or essence of the advice must be disclosed, but in the present case all that had been disclosed by the media release and the draft, was the nature of the advice.
11. The respondent further submitted that the three legal advices (within scope) do not advise that the Land and Environment Court outcome could jeopardise mining in New South Wales. This it was submitted was further evidence of the position that what the media release referred to and it was claimed 'disclosed' and what the advices contained, were significantly two different things.
12. The applicant submitted that it relied on the provisions of section 126 of the Evidence Act 1995 in respect of the waiver lifting the basis and the claim for privilege. As in all proceedings in the Tribunal under the GIPA Act, the applicant has the disadvantage of being required to mount an argument in the absence of factual material which can be scrutinised, analysed and positively adjudicated or determined in submissions before the Tribunal.
13. Whilst the legislature has deemed it appropriate to place the onus on the respondent agency in such matters, (establishing why their decision is consistent with the law), the practical situation is that such a position is advanced with knowledge, whereas the applicant remains in an 'information vacuum' as to the primary facts upon which evidence may be adduced. However the Tribunal takes a neutral position and can assess the veracity (or otherwise) of a respondent's argument by full reference to the primary facts (documents) which are in issue.
14. Notwithstanding these issues, the applicant did provide detailed submissions and referred to the common law test and the case of Mann v Carnell [1999] HCA 66. Waiver of privilege at common law 28. At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context[19]. 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 maintenance of the confidentiality which effects a waiver of the privilege[20]. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication[21], or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received[22]. 29. 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"[23]. 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[24], 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 barrister 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. 30. In Goldberg v Ng[25] this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject. In Goldberg, reference was made[26] to the statement of Jordan CJ in Thomason v The Council of The Municipality of Campbelltown[27]: "The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client". 31. His Honour's reference to intention must be read subject to what has been said above.
15. The applicant also made reference to the case of Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd and Ors [1996] NSWSC 148, whereby Rolfe J rejected a submission that the substance of legal advice was something different from or greater than its effect.
16. The applicant submitted that Rolfe J in noting a dispute about a conversion ratio between the parties, that the plaintiff maintained what the correct ratio was and had legal advice to that effect, and that this position amounted to a waiver of privilege.
17. The applicant submitted that the Minister's 8 November 2013 media release met the requirements of section 122 (3) of the Evidence Act 1995 because it is a knowing and voluntary disclosure of the substance of the communications. In further submissions the applicant considered the respondent's evidence and noted that the evidence was 'unchallenged'. However the Tribunal notes that no witnesses who provided sworn written evidence were required for cross-examination in the proceedings.
18. In respect of the issue of waiver of privilege, the applicant relied upon the affidavit of E. Sasson affirmed 14 March 2016 as establishing that the media release became publically available around 8 November 2013 and remained publically available at the time of the GIPA application. The applicant maintained its position that the medial release disclosed the substance of the legal advice.
19. The applicant also submitted that the case of Ampolex and RinRim were not specifically on point to the current facts and that they were dealing with general observations. The position was summarised as disclosing legal advice received about the consequences in the event that the Minister was not successful (in the Court proceedings). The applicant submitted that it was not necessarily relevant that some other aspect of the advice had been explicitly disclosed.
20. It was submitted that in RinRim the Court did not find that in every case, the legal adviser's reasoning must be disclosed in order for waiver to occur. In oral submissions the applicant submitted that Ampolex 'cuts both ways' and that RinRim should not be taken as a proposition that that the substance if the advice has been disclosed.

Closed Hearing.

1. The respondent sought a confidential hearing in accordance with section 107 of the GIPA Act.
2. The section provides that: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. The Tribunal dealt with the material in the Confidential Exhibit RC1, (the withheld information) and RC2 (an un-redacted version of open Exhibit R6.
3. In my view it is not necessary to incorporate what transpired in the brief confidential session by way of confidential reasons. That session occurred both on 1 April 2016, and again on 13 May 2016. The applicant and their legal representatives were not present when confidential submissions and evidence was dealt with by the Tribunal. All three themes of the case were addressed in the confidential session.

Consideration

1. I observe that in the current matter whilst the release (and draft) disclose the conclusion of the legal advice, they do not (in my view) disclose the reasoning. I note the references in the case law to the consideration of disclosure involving questions of degree.
2. I have had the benefit of examining the confidential documents as tendered by the respondent concerning the Clause 5 Schedule 1 (Legal Professional Privilege) ground. In these open reasons, I observe that the confidential material exposes a factual basis of information consistent with the evidence in these proceedings. In that regard I refer specifically to the affidavit of Nathan Paul Laird of 12 October 2015, the affidavit of Nathan Paul Laird of 31 March 2016, and the affidavit of Thomas Kwok of 12 May 2016.
3. In respect of the conclusive presumption against disclosure material (Cl 5 Sch 1) I recently addressed this issue in the case of Lonsdale v University of Sydney [2016] NSWCATAD 176, whereby the respondent relied on an earlier case to ground their position. That case being of SL v University of Sydney [2011] NSWADT 65. Reference was made to paragraphs 23 - 26 of that decision. 23. The privilege applies to confidential communications between government agencies and their salaried legal officers provided they have the necessary degree of independence (see Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 62 and 73). 24. As set out in Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 : 'The agency carries the onus of proof in establishing that documents are exempt on the ground of legal professional privilege under s 61 of the FOI Act: 'the burden of establishing that the determination is justified lies on the agency'. As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445: 'It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence [various authorities cited].' It is necessary to establish that in-house legal staff had the requisite degree of independence to bring the affected documents within the purview of privilege, having regard to the principles laid down by the High Court in Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54. While Gibbs CJ in Attorney General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 at 510 was inclined to the view that the privilege could only be claimed by a lawyer who has been admitted to practice, the law is now clear that the privilege does extend a situation where a non-qualified person, such as a law clerk, is giving advice subject to the supervision of a practitioner: see, for example, Glengallan Inv P/L & Ors v Arthur Andersen & Ors; Equuscorp P/L & Anor v Glengallan Inv P/L [2001] QCA 115 ; [2002] 1 Qd R 233 per Williams JA at [19]; see also, Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VicRp 61; [1984] VR 697 (Young CJ). 25.The University provided evidence that was not challenged by the Applicant in relation to the facts claimed to give rise to the privilege exemption. See affidavits of Kerry Rehn of 14 and 29 September 2010. 26.As a result of that evidence it is clear that the legal practitioners involved possessed real independence in the giving of advice. They each held a practising certificate in New South Wales and were employed within the University's Office of General Counsel an independent professional service unit of the University or, in the case of Sarah Heesom after 1 May 2007, as an external legal advisor to the University. The lawyers within the Office of General Counsel are expected to comply with the standards of professional conduct required of the legal profession.
4. I note that the case of Lonsdale was dealing with much more straightforward material in that the material (whilst sought to be privileged) no claim had been asserted as to waiver.
5. In Lonsdale at paragraphs 78 to 80 I revisited the grounds for Clause 5 claims. Clause 5 Schedule 1 claim - Legally Privileged 78. In respect of the material for which the respondent claims a conclusive presumption against disclosure, I refer to my approach in the matter of Bayne v Department of Environment and Heritage [2016] NSWCATAD 52. In that case I observed the following at paragraphs 13 to 18. 13. The relevant provision of the GIPA Act provides: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 14. I have examined the material provided on a confidential basis by the respondent. The material provided to the Tribunal does (to my mind) constitute material which falls within the criteria of Clause 5 of Schedule 1. 15. Whilst it is an internal legal opinion or advice, I note that the respondent has not waived privilege. In addition I note that it refers to other documents (which are not attached to the material before the Tribunal), but it is clearly providing advice about those documents, including their import and meaning, and their purpose and impact if any on the agency. 16. In the case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 at paragraphs 54 and 55 I observed the following: Legal Professional Privilege (Sch 1 Cl 5) 54.The general provisions relating to the existence of legal professional privilege are as follows. The material must be:◦In the context of a client and lawyer relationship, ◦That there is a confidential nature to the communication or the document(s), ◦The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation. 55.These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW). 17. In my view after examining the withheld material, it is clear that the identified documents constitute material that would fall within the scope (on any objective analysis), of material referred to in paragraph 16 above (as in the case of Hutchinson). In addition the identified material does appear to be in scope of the GIPA Act request of the applicant. 18.Whilst the material is clearly within the scope of the GIPA Act request, and thereby of possible interest to the applicant, and (given the nature of the relationship between the applicant and the material sought) possibly of high relevance to the applicant, because the material falls within the scope of Schedule 1, that is not determinative of release. Personal factors of the application do not come into any assessment of this material (as per section 55 of the GIPA Act) as the material is conclusively presumed to have an overriding public interest against disclosure under the GIPA Act. 79. In addition I note the matters referred to by the Tribunal in the case of Tebutt v Minister for Lands and Water [2015] NSWCATAD 95. In that case at paragraphs 30 to 35 when conducting a different set of facts, the Tribunal observed the following concerning the preconditions for the claim. Whether information would be privileged from production in legal proceedings 30.Section 118 of the Evidence Act 1995 provides as follows: 118 Legal advice 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. 31.The term "client" is defined in s 117 of the Evidence Act 1995 to include, relevantly: a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), ... (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,... 32.Section 118 of the Evidence Act 1995 is to be considered through the lens of s 131A of that Act, since cl 5(1) of Schedule 1 to the GIPA Act refers to "information that would be privileged from production in legal proceedings on the ground of client legal privilege" (emphasis added). Section 131A makes provision for a court to determine whether information is privileged from production in legal proceedings, as follows: 131A Application of Part to preliminary proceedings of courts (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, 1C 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. 33.Thus, s 118 of the Evidence Act 1995 is to be read with necessary modifications as required by s 131A, for the purposes of considering the application of cl 5(1) of Schedule 1 to the GIPA Act. 34.The privilege in s 118 only applies if a confidential document or communication is prepared or made for the dominant purpose of a lawyer providing legal advice to the client. The evidence establishes that Mr Schulz is a "lawyer" within s 118 and that his advice was confidential. It is apparent from the advice he prepared (at pages 9-12 of the respondent's materials), and from Mr Schulz's affidavit, that it was prepared for the dominant purpose of him providing legal advice. I also accept that summaries of the advice and documents recording instructions to provide legal advice attract the privilege in s 118(c), if they are prepared or made for the purpose of providing advice to a "client". 35.It remains to be considered whether the advice and other documents were prepared for the dominant purpose of providing advice to a "client" as defined. 80. Having considered that material (as submitted by the respondent in these proceedings), in my view the matters I observed in the cases of Bayne and Hutchinson apply to the contentions information in the current proceedings. In my view Ms Perks open evidence establishes the existence of the necessary preconditions and matters capable of giving rise to a claim of legal professional privilege.
6. Having examined those matters it is clear that all of the material for which the Clause 5 claim (LPP) is in my view properly characterised as information which would be privileged from production in legal proceedings on the grounds of client legal privilege, and I so find.
7. In respect of the second prong of Clause 5 (1) of Schedule 1 of the GIPA Act, whether that privilege has been waived, I have had careful consideration to the cases outlined above. In particular I note that the release does not disclose the basis of the advice, merely the conclusion. On one construction the release (and it's draft) advise that the Crown possesses legal advice which indicates a potential outcome. I note in particular the words: 'advice that………could jeopardise ..… .'
8. In the current matter, the observations of the Court in Fenwick seem particularly pertinent. This is due to the context that the advice, the Bill, and the media release existed within.
9. The observation as to whether disclosure amounts to disclosure of the substance of a privileged communication, from a consideration perspective involved questions of degree. In Fenwick what was disclosed (also including a draft) disclosed not only what was said to be the conclusions of the legal advice, but the reasoning. The disclosed letter in Fenwick specifically stated that 'the legal advice the defendant received is that lot 83 is not encumbered with the right-of-way the plaintiff claims and that the only right-of-way registered over that lot is in relation to lot 82 also owned by the defendant.' The Court observed that the specifics (albeit summarised) appear to be the reasoning leading to the conclusion of the advice.
10. In my view the current situation is analogous with the proposition in Fenwick, however the lack of disclosure of the reasoning in my view provides a significant basis for limiting the degree of any disclosure or waiver implied by the reference to the legal advice in the context of the Bill and the existing Court proceedings. For that reason significant weight attaches to the lack of disclosure of the reasoning behind the advice and for that reason (having noted the advice and the confidential exhibits) in my view the media release does not waive the privilege as referred to in the second prong of Clause 5 (1) of schedule 1 of the GIPA Act.
11. For that reason there remains a conclusive presumption of an overriding public interest against disclosure of the information for which the respondent claimed Legal Professional Privilege.

Cabinet Information

1. The following material was withheld by the respondent on the basis of it being Cabinet Information as specified in Clause 2 of Schedule1 of the GIPA Act. Documents 30, 32, 62, 81, 83, 84, 85 as well as attachment 1 of documents 38, 39, 46, 47, 48, 49, 50, 56, 57, 60, 61, , 66, 67, 70, 71, 72, 74, 76, 77, 78, 79, 86, 88 and 89. In addition attachment 2 of documents 60, 61, 72, and 82 was relied upon under the cabinet information provision. Attachment 3 of documents 60 and 61 were also withheld.
2. The applicant submitted that it accepted the reasonable grounds argument and that much of the information could understandably be characterised in the claimed manner. They did however submit that the factual material within the cabinet documents should come out. The applicant submitted that there was a two-step approach, 1, was there any solely factual material and 2, whether that information should be reasonably held in that context.
3. The applicant took the Tribunal to paragraph 17 of the affidavit of N.P. Laird of 31 March 2016 which referred to document 88. It was submitted that to the extent that the Titles area were quantifying the impact of the amendments and did not necessarily establish that those matters were considered by Cabinet.
4. At paragraphs 40-48 of their written submissions of 14 March 2016 the applicant refines their argument on this point. Submissions focused on the fact that the onus was on the respondent but no evidence had been led on this issue. The applicant maintained that the exemption concerning factual material at clause 4: (4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. would allow that material to be released unless it had been considered by Cabinet.
5. Whilst the documents referred to as 'minister's speaking points' were characterised by the respondent as cabinet material, the applicant submitted that they did not press for release of that or those documents as per paragraph 47 of their written submissions. Even if such matters are classified as being captured by Clause 2, their content appears to replicate matters which ultimately became part of the public record via the words of the Bill, and the published second reading speech.
6. The applicant requested that the Tribunal review the documents to be satisfied that they held the appropriate characterisation.
7. The respondent submitted that all the documents withheld under the Clause 2 provision were appropriately characterised and withheld. The respondent followed the 'dominant purpose' argument in that the documents in their view were prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration. This the respondent maintained was the position for all the claimed documents even if ultimately not all of them were actually submitted to Cabinet. This the respondent submitted was consistent with the words in the Schedule under the GIPA Act.

Consideration

1. I have independently reviewed all of the confidential documents for which this claim is made. Many of the documents are earlier drafts or versions of what would be constituted as or clearly defined as material prepared for Cabinet's consideration. It is not possible in open reasons to go any further into describing those documents. The respondent clearly knows what the documents contain and again I see no need for confidential reasons on that basis. The character of the documents themselves, the specific content and the caveats placed on various e-mails and covering notes make it clear that such information / communication is created for the dominant purpose of being submitted to Cabinet.
2. In my view on assessment of the documents (in particular the specified attachments) are all of this character and this is the obvious (if not only available) conclusion in this context that could be drawn. That material is therefore captured by the provisions of Clause 2 of schedule 1 of the GIPA Act, having regard to subclause (1) (b) in particular, and I so find.

Parliamentary Privilege

1. The third 'theme' of the proceedings concerned the parliamentary privilege or 'contempt of the Parliament' argument advanced by the respondent. This basis was argued in isolation for the following documents that remained contentious at the conclusion of the hearing:

• Attachment 2 Document 63.
• Attachments 2, 3 and 4 Document 93.
• Attachments 3, 4 and 5 Document 94. (emphasis added)

1. I have carefully examined all of the above documents, as I have been required to in respect of the other two grounds (LPP and Cabinet). In doing so I observe that Attachment 5 to Document 94 is the second reading speech which I note is identical terms to the one delivered by MLC Mr D Gay in the Legislative Council, in respect of the Bill.
2. It seems incorrect that the respondent would seek to withhold information which is open access information and on the public record. In the absence of any cogent submissions on this point and noting that this version is not a draft, I infer that the open access version is held by the Parliament, but as the information has been revealed or disclosed, it seems appropriate that the respondent now release this document.
3. The analysis above occurred in the absence of submissions by the parties. The Tribunal in effect made an inquiry of the public record to compare and contrast the document. It is difficult to ascertain how any prejudice might attach to any party arising under such a course of action.
4. In my view this position was consistent with the provisions of the Administrative Decisions Review Act 1997 which provides at section 63 the powers and procedures when conducting an administrative review.
5. Section 63 of the ADR Act provides the following: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
6. However, during consideration of the other information which forms this prong or theme, the parties conceded that aspects of the arguments before the Tribunal canvassed fresh territory.
7. The respondent drew attention to the applicant's submission that when the relevant emails (when read together) with the attachments, were within scope and for that reason if an email could be released on this prong, then it's attachment was available. However the applicant conceded that there was no legislative position supporting this.
8. However the discussion at hearing focused on whether the conduct of the Parliament extended to the conduct of the party room. It was discussed that cross bench briefings and party room briefings are central to proceedings in parliament, being the process and processes that surround and support the progress and conveyance of a Bill through the Houses.
9. The case of Della Bosca v Arena [1999] NSWSC 1057 was referred to by the respondent. From paragraph 23 to 25 Levine J refers to the cases that support the proposition that the function and work of the party room and parliament are linked and have a similar character when dealing with a matter ultimately before the chamber. 23 The submissions for the defendant in writing were well articulated and thorough. As to the discrete point relating to absolute privilege attending Caucus: the difficulty confronting the defendant is the "strike out" nature of her application and that whilst the Rules of the Parliamentary Labour Party are before me, there is no evidence as to its "business" on the occasion by itself or vis-a-vis the business of the Legislative Council. In this context I am of the view that the relief sought in relation to this publication should not be granted. Further, the law provides no binding authority in this area. In Rata v The Attorney-General (unreported, 24 October 1996) Master J C A Thompson of the High Court of New Zealand appears to have held in the circumstances where the Master seems to have had evidence on the issue, that the Caucus as it had developed in New Zealand is an integral part of the Parliamentary process and that all matters transacted in Caucus are inexplicably (sic - query "inextricably") linked to Parliament and thus attracts the privilege (at 19). In Holding v Jennings [1979] VicRp 29; (1979) VR 289 Anderson J held that the publication of a privileged statement to a person for the purpose of typing, printing and compiling such statement is in accordance with the reasonable and usual course of business of the Parliament and thus has the same protection of privilege as the publication of the statement on an occasion attracting absolute privilege. In Roman Corp Limited v Hudson Bay Oil & Gas Co Limited (1973) 36 DLR (3d) 413 the Supreme Court of Canada implicitly upheld the decision of a the Court of Appeal of Ontario (1972) 23 DLR (3d) 292 to the effect that a press release by then Canadian Prime Minister was properly characterised as "proceedings in Parliament". The Supreme Court of South Australia in Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 effectively left the question open. 24 It must therefore be said that the question of whether or not proceedings of "Caucus" are embraced by the doctrine of absolute privilege in relation to the proceedings of Parliament is clearly an arguable one (see also O'Chee v Rowley (1997) 150 ALR 119 - Supreme Court of Queensland). 25 The submissions for the plaintiff are clear. All that the plaintiff intends to do, it is said, at trial is to prove what the defendant said "as a matter of history". There is no dispute on the authorities that Article 9 of the Bill of Rights permits that course (see Uren (supra); Murphy (supra); R v Jackson & Ors (1987) 18 SWLR 116; Beitzel (supra); Laurance v Katter [1996] QCA 471; (1996) 141 ALR 447).
10. The applicant submitted that if the respondent is correct in the above characterisation, then the question is to be answered by the common law and informed by Article 9 of the Bill of Rights 1688 (Imp) as applied in New South Wales under section 6 of the Imperial Acts Application Act 1969 (NSW).
11. Reference was also made to the case of Egan v Willis [1998] HCA 71 and the need to determine the scope of the privilege. 48.The principle derived from the authorities and not challenged on this appeal is that the Legislative Council has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions. As Priestley JA emphasised in the Court of Appeal[69], to decide whether a particular power, here the power of suspension of a member for a limited time from the service of the House, is reasonably necessary for the Legislative Council to perform any constitutional function, it is necessary first to identify that function. 49.The primary function of the Legislative Council is indicated by s 5 of the Constitution Act. This is the exercise by the Legislative Council, as an element of the legislature, of its power, subject to the provisions of the Commonwealth Constitution, to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever. As has been pointed out, subject to restrictions with respect to money Bills, a Bill may originate in the Legislative Council. Further, the Legislative Council has, in general, equal power of disallowance of delegated legislation[70]. 50.In addition, the long practice since 1856 with respect to the production to the Council of State papers, together with the provision in Standing Order 29 for the putting to Ministers of questions relating to public affairs and the convention and parliamentary practice with respect to the representation in the Legislative Council by a Minister in respect of portfolios held by members in the Legislative Assembly, are significant. What is "reasonably necessary" at any time for the "proper exercise" of the "functions" of the Legislative Council is to be understood by reference to what, at the time in question, have come to be conventional practices established and maintained by the Legislative Council. 51.Such a position might be varied or abrogated by legislation. There has been no such legislation which is relevant to the present issue. In that regard, it will be noted that in respect of disagreements between the two chambers, s 5B of the Constitution Act provides a special mechanism which may lead to the submission of the measure to the electors. 52.In the Court of Appeal, Priestley JA pointed to the broad reach of the legislative power conferred by s 5 as indicating an imperative need for each chamber to have access to material which may be of help to it in considering not only the making of changes to existing laws or the enactment of new laws but, as an anterior matter, to the manner of operation of existing laws[71]. That anterior matter, as his Honour said, "clearly embraces the way in which the Executive Government is executing the laws"[72].
12. The argument on the scope of the privilege also dealt with whether 'splitting' the emails from the attachments, infringed the privilege of parliament as being asserted under this provision. The situation whereby an email was released but it's attachment was not seemed to the applicant to be inappropriate.
13. The applicant submitted that the Commonwealth cases should be treated with some caution and that the NSW cases were applicable and that the common law doctrine applied.

Consideration

1. Other than attachment 5 to document 94, it would appear that there may be other grounds which the respondent could rely upon in respect of withholding the information. In my view various public interest considerations against disclosure could come into play under Clause 1(e) of the Table to section 14 of the GIPA Act. However no such grounds (let alone weight) have been submitted and made out.
2. In my view, the basis of withholding those party room briefings is operationally analogous to the Cabinet exemption. The difference being that it is not a specific convention, albeit a common law doctrine applying in this instance, and by virtue of Clause 4 (c) could be argued as infringing the privilege of the Parliament. In my view it was the intention of the legislature in the drafting of the GIPA Act, to withhold release of information held by an agency, whereby it could be argued that it would infringe parliamentary privilege. Having examined the content of the information, it seems consistent with the intended purpose of the other exemptions (Cabinet), albeit the provenance of the information arises in the party room.
3. I note that whilst the terms 'Minister' and staff of the Minister are referred to in section 4 (1) of the GIPA Act, it appears that the intention of the Act was not to capture matters in the party room involving politicians (other than the Minister). This sits with the general references to Agencies, the Parliament and the Minister, as they appear as references to coverage under the GIPA Act, and effective exemptions (such as Schedule 1).
4. Whilst the presumption under the GIPA Act is that information is released, in this instance I believe that having regard to the matters referred to in Della Bosca, and Egan the intended import of Clause 4 (c) would extend to this material. Other than attachment 5 to document 94, it follows that the claimed information should be withheld.

Section 14 table 1 Clause 3 (a) - consideration 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information,

1. The respondent submits that release of this information could reasonably be expected to create this result. The provision was applied to documents 1 and 2 which were partially released.
2. The Tribunal has previously examined the meaning and approach to terms 'could be reasonably expected to' in prior GIPA Act decisions which themselves have drawn on statutory interpretation and precedent from Superior Courts. In Flack v Commissioner of Police (NSW) 2011 NSWADT 286 the Tribunal reiterated that there must be an objective assessment of the matter. At [41-43] the Tribunal observed: 41. The word 'reasonable' in the context in which it appears in clause 1 and 3 of the Table is that set out by the Tribunal in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. That decision concerned the construction of the words 'could be reasonably expected to' in clause 7(1)(c), of the Schedule 1 of the repealed FOI Act. These words were also contained in clauses 4, 4A, 5, 13(b), 14, 15, and 16 of Schedule 1 of the repealed Act. At [25] the Tribunal gave the following explanation on the accepted construction of these words: '25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority . Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.' 42. That is, the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities. 43. In my view, the information in dispute if disclosed could reveal personal information about persons other than the applicant or her husband. To the extent the information is personal information about the applicant and her husband, I am satisfied that given the context in which this information is contained that if it is disclosed, that disclosure could reasonably be expected to reveal the personal information of the other persons.
3. The respondent submits that release of this information could reasonably be expected to create this result.
4. I agree that the evidence of the withheld information provides data which would meet the precondition of personal information (as defined in the GIPA Act) and that the release of it could reveal such information. The question however is what weight should be given to this criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure.
5. The mere fact that such a matter would occur is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure.
6. In my view the information is only relevant in respect of the correspondence to which it attaches. It appears that the respondent did not consult on this matter. Notwithstanding the lack of consultation, in the absence of the applicant pressing the matter further, it seems appropriate to observe that the privacy claim, as asserted by the respondent would appear to have some weight. I make this observation in the absence of any arguments or third party submissions to the contrary having noted page 3 of the original decision of the respondent of 9 December 2014.

Conclusion

1. Having examined all of both the open and confidential material filed with the Tribunal by the respondent, and having noted all of the evidence and submissions in the proceedings (both written and oral proceedings), in my view the correct and preferable decision is to uphold the decision of the respondent, except in respect of the second reading speech (which I note is not a draft as it is in identical terms to the delivered speech).

Orders 1. The decision of the respondent is affirmed (except as referred to in order (2)) 2. In addition to any material already released to the applicant by the respondent, following confidential session, the respondent is to release attachment 5 to Document 94. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2016