Ku-ring-gai Council v NSW Department of Premier and Cabinet

NCAT Administrative and Equal Opportunity|2016-06-29|Before: Dr J

Solicitors: Sparke Helmore (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1610176

Background

On 18 December 2015, the second respondent, the Hon. Mike Baird, Premier of NSW, issued a press release proposing 35 new local government councils in NSW be established by way of merger of existing councils under the Local Government Act. The applicant, Ku-ring-gai Council, was affected by that announcement, and it applied under the Government Information (Public Information) Act (the Act) for material contained in a NSW Government document entitled 'Merger Proposal - Hornsby Shire Council (Part Ku-ring-gai Council)' dated 2016, namely: 1. The independent analysis and modelling by KPMG referred to in that document; 2. The analysis of KPMG referred to in two other parts of the document.
In each case, the information sought included details of any assumptions upon which the analysis was based. That application was made on 8 January 2016.
On 25 February 2016, a delegate of the first respondent made a decision refusing access to the two documents which are the subject of this proceeding, namely the KPMG prepared: 1. Record 4, "Implementation of Local Government Mergers - Business Case"; and 2. Record 5, "Local Government Reform - Merger Impacts and Analysis Report".
The delegate found that each document comprised cabinet information and refused access under s 58(1)(d) of the Act. An application for review in this Tribunal was filed on 21 March 2016 and came on for hearing on 29 June.

What is Cabinet?

The Butterworths Australian Legal Dictionary (1997 ed) concisely defines the Cabinet as: A body consisting of ministers of the Crown which meets regularly to transact and implement the business of government. The cabinet, which in practice is the driving force behind government, is not formally recognised in any of Australia's constitutions.
In her book, "The Constitution of NSW", Professor A Twomey writes (at page 704): The cabinet has been described as 'the cornerstone of the system of government in NSW'. Jenks, in describing the Victorian Constitution in 1891, discussed the 'two shapes' of the executive council. The 'formal' shape is the 'executive council proper', presided over by the Governor, at which appointments are confirmed, resignations are accepted and cabinet decisions put into official form. The 'informal' shape, however, is the Cabinet which meets in the Premier's offices and 'is the real core and essence of the government'. It 'wheels the whole executive force of the community'. It meets privately, and its meetings are confidential. It determines policy and is subject to collective responsibility. LJ Rose described the cabinet as 'an informal meeting of ministers that can itself do nothing, but can determine everything, its decisions being carried out by the Governor in Council or by a single minister, as the case may be.' Murphy J, himself a former Commonwealth Cabinet Minister, observed that 'in theory, the Governor in Council, and in practice, the Cabinet, is the highest political organ of the State.' (citations omitted)
Given the centrality of the Cabinet in government, and given the applicable system of collective responsibility by Australian governments of Cabinet decisions, the need to give legal protection to its confidential discussions is well established. In Commonwealth of Australia v Northern Land Council (1992) 176 CLR 604 at 615, the plurality said, in the context of public interest immunity, that: It has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision that may be made. Although Cabinet deliberations are sometimes disclosed in political memoirs and in unofficial reports on Cabinet meetings, the view has generally been taken that collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential.
Those well understood notions, although made in relation to the species of public interest immunity privilege known as cabinet privilege, may explain the policy reasons behind the exceptional approach taken in the Act (mainly s 106) in relation to Cabinet information as opposed to other categories of information. This may be summarised as follows: 1. First, there is a conclusive and determinative presumption of an overriding public interest against disclosure for 'Cabinet information' as defined in Schedule 1, Clause 2 of the Act; 2. Second, the Tribunal's role in relation to such information is significantly circumscribed by s 106 of the Act so that, initially, the role of the Tribunal is "limited to deciding whether there were reasonable grounds for the [Cabinet information] claim" and the Tribunal is not at that point authorised to make a decision as to the correct and preferable decision on the matter: s 106(1); 3. If the Tribunal is not satisfied that there were such reasonable grounds, by evidence on affidavit or otherwise, then, and only then, may the information the subject of the review be produced for examination by the Tribunal alone; 4. If after considering the information, the Tribunal remains unsatisfied, then the claim for an overriding public interest against disclosure is to be rejected and then and only then the Tribunal makes the correct and preferable decision. However, the Premier is then to have a further opportunity to appear and be heard in relation to the matter at that stage.

Cabinet Information

Clause 2(1) of Schedule 1 of the Act provides: (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).
The application of s 106 of the Act to these provisions was set out in D'Adam v NSW Treasury [2014] NSWCATAD 68 at [46]-[47]: 46 In performing [its] limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them. 47 The respondent bears the onus of establishing that it had reasonable grounds for the claim (s 105(1)) and it must do so on the balance (meaning preponderance) of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, [65][2004] FCA 143; , 208 ALR 73, 86.
See also Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101 at [19].

The Issues

There are four questions for determination, namely: 1. Is there a reasonable basis for concluding that the document fell within clause 2(1)(b) of Schedule 1 to the Act? 2. Has there has been public disclosure of the information pursuant to clause 2(2) of the Act? 3. Were the documents merely attachments, as opposed to being Cabinet information (see clause 2(3) of Schedule 1)? 4. Was the information "solely factual material"?
For the reasons which follow, the answer to the first question is 'yes' and the answer to each of the other questions is 'no'. It follows that the Tribunal need not consider the questions, or undertake the processes, set out in s 106(2-3) of the Act.

Comity

Unusually, the exact documents sought in this review were the subject of recent consideration by another Senior Member of the Tribunal in Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101. In that case, the Tribunal decided that the documents comprised Cabinet information (see [45] and [51] in those proceedings), and that the exception in clause 2(4) of Schedule 1 to the Act was inapplicable because neither document consisted "solely of factual material". Substantially the same open evidence as was put forward here by the Respondent, was relied on to reach that conclusion in Bennison.
I invited the parties to put in submissions on the question of the application of the principle of comity. The respondent chose to put in submissions. The applicant did not. In essence, I accept the submissions of the respondent as follows.
First, while the Tribunal is not bound by the doctrine by precedent, that is, it is not formally bound to follow earlier decisions, the Tribunal should exercise caution in re-opening prior, considered rulings of an earlier Tribunal when made by, for example, the President or a Deputy President, unless of the view that the previous decision is "clearly wrong". Additionally, a prior considered ruling should only be re-opened in the face of a new or significant argument later raised. These propositions are discussed in: Rittau v Commissioner of Police, NSW Police Service [2000] NSWADT 186; ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121; BY v Director General, Attorney-General's Department [2002] NSWADT 79; and Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22.
As the respondent submitted, in relation to the Clause 2(4) issue, the decision in Bennison turned on whether the clause was directed towards the information contained within a document considered as a whole, or to various pieces of information contained within a document, and concluded, at [42]: "In order to fall within the scope of [clause 2(4)]…it is not sufficient that the information in the record is only partly factual material."
That is a question of statutory construction. As the applicant has not raised any new or significant argument, and as I consider the decision in Bennison correct for the reasons given, I intend to follow that decision.
In relation to the ultimate issue in each case, there is a question as to whether the records in issue were prepared for the dominant purpose of submission to Cabinet, so coming within clause 2(1)(b). The respondent submits that is not a solely a question of legal principle or statutory construction, but that nevertheless, the decision should be followed: 1. First, because of the need for consistency in decision-making; 2. Second, because of the ability of the Tribunal based on s 38(2) of the Civil and Administrative Tribunal Act to "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice"; and 3. Third, to act as s 36 of the CAT Act directs, "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
Given that the ultimate issue is whether the Tribunal is satisfied that there were reasonable grounds for the respondent's claims in respect of the two documents as opposed to an actual determination that the documents comprised Cabinet information, then absent new evidence showing the Bennison ruling was "clearly wrong", it should be followed. That is an independent reason for the orders I make.
I have also come to the same view for the reasons which follow.

Evidence

Evidence was given by Mr Paul Miller, General Counsel of the Department of Premier and Cabinet. He was an impressive witness who was not seriously challenged on any critical issue. He was well qualified to give evidence, noting that he had: 1. Held his current position since 2010, having been first employed by the Department in 2005; 2. Extensive experience and knowledge of Cabinet, having provided advice regularly on legal, administrative and procedural issues relating to the conduct of Cabinet, 3. Attended Cabinet as an ad hoc Secretary to the Cabinet in the absence of the permanent occupant of that position; and 4. Attended a variety of Cabinet committee meetings.
He gave unchallenged evidence that Cabinet in NSW operates in the traditional manner, being constituted by Ministers, meeting confidentially, acting in accordance with the principle of collective responsibility, conducting such meetings in secret so that frank and vigorous exchange of views could take place, and, because of the principle of collective responsibility, not revealing whether any Minister's particular proposal to Cabinet had been accepted, rejected, or amended by Cabinet.
He also considered that any disclosure of the Cabinet documents sought in this case would tend to "mute and impede" the advice given to Cabinet, discussions and deliberations by Cabinet on future matters. I accept that evidence.
Mr Miller said that, in 2015, the firm KPMG was engaged by the NSW Government to provide advice on Local Government Reform and that KPMG was instructed that the documents it was preparing were for submission to Cabinet, or "inputs" for Cabinet documents, and included Documents 4 and 5.
In relation to Document 4, Mr Miller reviewed the document himself and based on his experience, said: 1. Its substance was consistent with it having been prepared for the dominant purpose of submission to Cabinet; 2. Having examined official Cabinet records and other inquiries, considered that it was in fact submitted to Cabinet in the form of an annexure to a Cabinet submission; and 3. He had multiple conversations with both Dennis Smith, Solicitor, Local Government Reform Division in the Department, and his supervisor, Helena Ritchie, Acting Director, Office of General Counsel in the Department, both of whom informed him that document 4 was prepared by KPMG for the dominant purpose of being submitted to Cabinet for its consideration and had not been publicly released.
By the end of the hearing, Ms McWilliam conceded that Document 4 was produced for the dominant purpose of submission to Cabinet. That concession was properly made.
In relation to Record 5, having had multiple conversations with Dennis Smith and Helena Ritchie, Mr Miller had been informed that this document was prepared by KPMG for the dominant purpose of being submitted to Cabinet for its consideration, and although a shorter document with the same title had been released and that some of the information contained within it was publicly available in other forms, the substance of the document was consistent with it having been prepared for the dominant purpose of submission to Cabinet. Further, it was in fact submitted to Cabinet in the form of an annexure and release of it would reveal or tend to reveal the position the Minister had taken on a matter in Cabinet. I accept his evidence.
Much time was spent seeking to establish that document 5 was produced for "government" and was not initially intended for the dominant purpose of production to Cabinet. However, the two documents (Exhibit B and C) which the applicant principally relied upon to make this case were not documents that the witness had ever seen before. I acknowledge, as was said in Bennison's case that it is difficult to cross-examine where there is a measure of hearsay evidence, but in this case, Mr Miller's evidence was unwavering. He was advised by his named colleagues that the document was prepared for that dominant purpose, and he could identify no other likely purpose.
Further, it is clear from the footnote references to it, that it was produced in December, very close to the Premier's amalgamation announcement of 18 December, and according to Mr Miller's evidence, which I accept, by that stage, there was no doubt that Cabinet was fully seized of the issue of amalgamations and the report was certainly prepared for the dominant purpose of being submitted to Cabinet, as opposed to the government more generally. I have also read his closed affidavit and that supports this conclusion, namely that document 5 comprised Cabinet information. I am fortified in coming to that conclusion as Document 5 was the subject of a finding in Bennison that it amounted to Cabinet information.
Finally, Mr Miller said "the release of Record 4 would reveal or tend to reveal the position that the Minister for Local Government has taken on a matter in Cabinet", an identical conclusion he came to in relation to Record 5, and in relation to which he was neither challenged nor cross-examined. That provides a separate basis under Sch 1 Cl 2(1)(e) to conclude that there were reasonable grounds for the claim that each document was a cabinet document.
I am therefore satisfied that the respondent has established that there were reasonable grounds to conclude that both documents comprised Cabinet information under Cl 2(1)(b) as well as (e).

Clause 2(2) disclosure

There has been no disclosure of either of the documents by approval of the Premier or Cabinet. Reference was made to the fact that on 5 April 2016, in a letter from the Minister for Local Government, the Hon. Paul Toole MP to the Member for Davidson in the NSW Parliament, Mr J R O'Dea MP, it was written: I assure you that KPMG's analysis and modelling of the merger proposals is entirely contained within documents that are publicly available. The Local Government Reform Merger Impacts and Analysis document was prepared by KPMG on behalf of the NSW Government, and provides an overview of the benefits of the proposal. The technical report outlines the assumptions made by KPMG when conducting its analysis and modelling. The outcome of the analysis and modelling, and further details on each merger proposal, are contained in the 35 individual proposal documents.
But this letter does not establish disclosure by the Premier or Cabinet in any way. Rather, as the letter itself makes clear, the documents being spoken of are the documents available at the hyperlink indicated in the letter itself. I note for completeness that that was the same factual conclusion reached by the Land and Environment Court in relation to Documents 4 and 5: see Ku-ring-gai Council v West [2016] NSWLEC 62 at [47]. My conclusion is confirmed by the evidence of Ms Stokes, who was not cross-examined.
For the reasons submitted by the Respondent, what was said by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 45 in relation to public interest immunity does not impact upon the proper construction of clause 2.

Clause 2(3)

This provides "Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1)." Evidently, this clause deals with material which is not otherwise Cabinet information falling within clause 2(1). I have already found that the material does fall within clause 2(1)(b), and therefore clause 2(3) is irrelevant.

Clause 2(4)

Some time was spent during the hearing seeking to draw a distinction between 'solely factual' statistics and analysis. As to the meaning of this provision I adopt what was said in D'Adam v Treasury [2014] NSWCATAD 68, in terms undisturbed on appeal in [2015] NSWCATAP 61: [70] The applicant also contends that both the Roadmaps and the allocation letter attachments cannot be treated as Cabinet information because cl 2(4) excludes from that category information "to the extent that it consists solely of factual material" unless it would, relevantly, "reveal or tend to reveal information concerning any Cabinet decision or determination". The applicant contends that the Roadmaps simply record numerical savings targets and whether they have been met, and the attachments simply record the cap limits for each agency and "between accounts". While the limits when first proposed might have been characterized as opinions, advice or recommendations rather than as facts, following their adoption by the relevant decision-makers, they became matters of fact. [71] The statutory test, however, is whether the information consists solely of factual material, not whether it contains factual material as well as other material of a non-factual nature. In this case the information, whether in the Roadmaps or the attachments, consists to a great extent of targets, projections and estimates. While the setting of targets and the making of projections and estimates is in one sense a fact, the information itself consists also of opinions or recommendations about the desirability, likelihood and attainability of certain outcomes. It is not solely factual material. Nor does it lose that character because of the largely in numerical form. The same would be true of the budget documents themselves. (emphasis added)
The evidence of Mr Miller was that the material was not solely factual: see paragraphs 30 and 36, and his confidential affidavit. I accept that evidence. I am fortified in that conclusion by the identical finding in relation to the same documents in Bennison.

Conclusion

The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2016

At a glance

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