Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales

REASONS FOR DECISION 1 The Appeal Panel upheld an appeal by the appellant, the Law Society, against a determination made under the Freedom of Information Act 1989 (FOI Act) by the respondent, WorkCover: see Law Society of New South Wales v General Manager, WorkCover Authority of New South Wales [2004] NSWADTAP 40. The Tribunal below had only dealt with one of the two categories of exemption upon which WorkCover had relied: legal professional privilege (cl 10 of Schedule 1 to the FOI Act). The Tribunal, having found legal professional privilege applicable, did not deal with the other ground of exemption: internal working documents (cl 9). 2 As the Appeal Panel found legal professional privilege not to be applicable, the Appeal Panel acceded, in the interests of expedition and finality, to the Law Society's application for leave to extend the appeal to merits, rather than remitting the matter back to the Tribunal at first instance: see Administrative Decisions Tribunal Act 1997, s 113(2) (the Tribunal Act). This decision deals with WorkCover's claim to rely on the internal working documents exemption; and two further grounds that WorkCover has since added - the confidentiality exemption (cl 13) and the secrecy offences exemption (cl 12). 3 In an appeal on the merits, the Appeal Panel exercises all the powers of the Tribunal. Section 115 of the Tribunal Act provides: ' 115 Appeals on the merits (1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel 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) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned. (3) In determining any such appeal, the Appeal Panel may decide: (a) to affirm the decision, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside.' 4 It is helpful at this point to repeat some of the information given in our earlier decision at [6]-[13]: '6 During 2001 the New South Wales Government embarked on major reforms of the workers compensation dispute resolution system. One of the Government's aims was to reduce the extent of reliance on legal services in the processing and disposal of claims, as one element of a strategy to reduce the cost of the system. 7 In October 2001, WorkCover engaged Ms Michelle Castle, a well known legal costs consultant, to provide it with ongoing advice in relation to issues raised by the reform proposals. Ms Castle carried on work through two firms, one a costs consulting firm, the other a solicitor's practice. She held a solicitor's practising certificate. The engagement took the form of an agreement between WorkCover and 'Michelle Castle (trading as Thompson Castle [the firm of solicitors of which Ms Castle is a partner]) ('the Consultant') and 'DFT Legal Services Pty Ltd (trading as DG Thompson Legal Costs Assessor)('the Consultants')'. 8 During 2002 a committee to review the operation of the new scale [the subject of a regulation made towards the end of 2001] was appointed by the Minister on which the Law Society, as the peak body for solicitors in New South Wales, was represented. In September 2002 WorkCover renewed its agreement with Ms Castle. In October 2002 the Law Society made a submission to the review committee raising concerns in relation to the new scale. On 11 November 2002 Ms Castle gave WorkCover confidential advice in reply. Apart from general advice, it included (as the Tribunal's decision below reveals) assessment of the impact of the new scale on 'scenarios' developed after consultation with officers of the Law Society. On 13 December the Law Society lodged with WorkCover the access application that has given rise to these proceedings. 9 Some aspects of the agreement with Ms Castle (or 'the retainer' as the Tribunal called it) should be mentioned. 10 The agreement stated in the preamble that: 'WorkCover has a need for expert advice on proposals for regulations relating to legal and agents costs in the workers compensation scheme. Michelle Castle and DGT Legal Services Pty Ltd has [sic] been selected following an expressions of interest process to provide the necessary services.' 11 Clause 2 of the agreement provided that 'The Consultant must provide the Services set out in the Annexure'. The Annexure stated that WorkCover is conducting a review of the arrangements for regulating legal and agent costs. It went on to state: 'The Consultant will be required to review a draft policy paper and a draft cost scale and provide advice on the following matters: 1. The effectiveness of the proposed cost scale in controlling legal costs within the workers compensation system; 2. Whether the proposed cost scale provides adequate remuneration for the provision of certain legal and agents services; 3. Whether the proposed cost scale will have any adverse impacts on the rights of injured workers to legal representation; 4. Whether the proposed cost scale creates adequate incentives to settle legal disputes within the workers compensation system, early in the dispute resolution system; 5. Possible adverse impacts of the proposed cost scale, including but not limited to incentives that may be created to provide unnecessary legal services, or create delays in the dispute resolution system; 6. Any other impacts of the proposed scale; Advice on options to address any problems or issues arising in relation to matters identified under 1 to 6.' 12 The agreement included a professional indemnity clause binding the consultant to indemnify the agency in respect of any losses occasioned by the consultant in respect of the services. She was obligated to have current professional indemnity cover.' 5 It is also helpful to set out the history of relevant regulations and the precise administrative history of the working party. 6 A major new regulation relating to costs accompanied the statutory reforms to the workers compensation system. This regulation commenced on 1 January 2002: the Workers Compensation (General) Amendment (Costs) Regulation 2001, amending the Workers Compensation (General) Regulation 1995 (the 1995 Regulation). The major feature of the changes was a shift from time-based costs allowances to events-based (lump sum) costs allowances. The amendments also, in effect, excluded barristers from the new arrangements, confining remuneration for legal costs to solicitors. 7 The Government established a Panel, known as the Legal Costs Regulation Review. Its role was to review the operation of the new costs scale and to advise the responsible Minister. The Law Society was a member. The first meeting was held on 28 August 2002. After the first meeting the Law Society prepared a detailed submission, received 9 October 2002. WorkCover chaired the panel (through a senior officer, Mr McInnes). 8 In order to respond to the Law Society submission WorkCover asked Ms Castle to provide it with detailed advice. Her advice was provided on 11 November 2002. A further advice was provided on 27 November 2002. During this period the Law Society pressed for access to the advice, as it had involved an assessment of the Law Society's submission, and had examined scenarios presented by the Law Society where it claimed the new costs regime was inadequate. Two further meetings of the panel were held on 3 and 12 December 2002. The Law Society continued to press its request for access to the Castle advices. WorkCover refused to make the advices available. The Law Society made the FOI access application which is the source of these proceedings the next day, 13 December 2002. 9 WorkCover's determination refusing the request was made 5 February 2003. The documents withheld (often referred to in this decision as the Castle documents) are described as follows in the schedule of documents: · 18/10/02 Michelle Castle, Proposed methodology - an attachment to Michelle Castle's email of 18/10/02 (copy of email provided) (referred to in these reasons as Document 1) · 11/11/02 DG Thompson Legal Costs Assessors (Michelle Castle) - Letter and Draft Report to WorkCover 'Legal Costs Regulation Review' ( this is the key document sought and is referred to in these reasons as Document 2) · 12/11/02 DG Thompson Legal Costs Assessors (Michelle Castle) - Draft Report to WorkCover 'Legal Costs Regulation Review' - an attachment to Michelle Castle's email of 12/11/02 (copy of email provided) (referred to in these reasons as Document 3) · DG Thompson Legal Costs Assessors (Michelle Castle) - four Sample of bills of costs (this group of documents is referred to in these reasons as Document 4) · 27/11/2002 DG Thompson Legal Costs Assessors (Michelle Castle) - Draft report to WorkCover 'Legal Costs Regulation Review' - an attachment to Michelle Castle's email of 27/11/02 (copy of email provided) (referred to in these reasons as Document 5). 10 The next event was the gazettal of further amendments to the new costs regulations. These were made on 28 February 2003 by the Workers Compensation (General) Amendment (Costs in Compensation Matters) Regulation 2003. (Later in 2003 a new Principal Regulation came into effect - on 1 September 2003: the Workers Compensation Regulation 2003. Part 19 deals with costs, together with Schedules 6 and 7.) 11 In July 2003, after representations from the Law Society, the Minister agreed to undertake a further review of the costs regulation. This time the Minister appointed an independent chairperson, the Honourable John Clarke QC, retired Supreme Court judge. The body was known as the User Group. WorkCover, the Law Society and the Workers Compensation Commission (the new body established to deal with workers compensation claims) comprised the group. 12 This process gave rise to a confidential report by the chairperson to the Minister on 29 June 2004: see the five page letter annexed to Ms Bernadette Grant's affidavit. On 4 August 2004 the Minister provided the Law Society with a copy of the letter, in the exercise of his discretion (there was no FOI application involved). 13 Among other things, Mr Clarke said that there had been 'constructive negotiations leading to a significant number of changes now being proposed by WorkCover'. He continued: 'At the outset all agreed that 'event based costing' was not to be questioned and that meetings should focus only on major issues'. He then reported on the three issues raised by the Law Society: the hourly rate; the non inclusion of certain events in the scale; and the adequacy of remuneration for certain events. After dealing with these matters he concluded: 'In summary the current exercise has been worthwhile. The Law Society has aired its concerns and WorkCover has responded in a constructive fashion. Certainly, the Law Society does not believe its views have been fully respected, but there is no doubt that the positions are closer now than they were. What is important is that regular reviews take place (hopefully, without the need for an independent chairperson) to ensure that the system continues to work efficiently.' 14 The Law Society, as these proceedings reflect, has continued to press for the Castle documents. Exemptions Relied Upon by WorkCover 15 The Appeal Panel has perused the documents in issue, in the course of making its earlier decision, and again on this occasion. Internal Working Documents Exemption 16 The internal working documents exemption is found in cl 9 of Schedule 1 to the FOI Act. The right to refuse a document on this basis is conferred by s 25(1)(a) read in conjunction with the definition of 'exempt document', category (a), s 3). 17 Clause 9 provides: ' 9 Internal working documents (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material.' Applicability of cl 9(1)(a) 18 WorkCover said in its submissions that Documents 2, 3 and 5 disclosed: opinions of Ms Castle relating to the legal effect of the existing regulation; alternative methods for costing legal services, based on Ms Castle's understanding of the legal effect of the existing regulation; the nature of the steps taken in the legal proceedings to which costs are incurred; and made recommendations as to the drafting of the regulation for 2002. In the Appeal Panel's view this is a reasonable characterisation of the documents, though we would describe the documents as not involving, to any significant extent, the giving of legal advice, for the reasons explained in our earlier decision. 19 Some emphasis was given by the applicant to the fact that the advices originated from outside the agency. This exemption can extend to reports made by external consultants: see further, Harris v Australian Broadcasting Corporation (1984) 51 ALR 581 (Fed Ct FC). 20 The Law Society submitted that it was not clear that the Castle advices were obtained solely for the purpose of the decision-making functions of the Government - since the review process had been constructed as one which would report jointly to the President of the Law Society and the Minister. This point is supported by the text of the letter from the Minister's Parliamentary Secretary to the President of the Law Society dated 13 February 2002. The Parliamentary Secretary confirms the intention to carry out a 'thorough review' of the regulation that came into force on 1 January 2002. The letter said: 'I am proposing that this review will report to both myself and to the President of the Law Society. The review will be conducted by a Review Committee consisting of representatives of WorkCover, the Law Society and the Workers Compensation Commission. Both WorkCover and the Law Society will be able to nominate a cost consultant to provide expert costing advice throughout the review process. Full details of the review are attached for your consideration.' 21 But by the time Ms Castle was engaged, the evidence suggests that the review process had fallen firmly under the control of WorkCover. It chaired the committee, and Mr McInnes, the chair, ultimately advised the parties that WorkCover would report separately to the Minister; and added that it was open to the Law Society to make an alternative submission. 22 It is plain we consider that WorkCover engaged Ms Castle, and that she provided advice to them under an agreement where she promised confidentiality. There is nothing in the material before us to suggest that she was other than a consultant to WorkCover. She was not, for example, engaged by WorkCover 'on behalf of' the Review Panel. 23 We are satisfied that the documents fall within the scope of cl 9(1). They are documents that were obtained in the course of high-level deliberations on an important and contentious proposed reform of the law. WorkCover was a key agency in that process of advice and deliberation. Its Minister had initiated the review. It clearly was a key source of advice to the Minister. As noted, it chaired the review. It was entitled, obviously, to seek its own advice on the matters raised by the Law Society in relation to what the appropriate allowances should be for legal costs in the new workers compensation regime. 24 We are satisfied that release of the documents would disclose 'opinions, advice and recommendations' that were obtained and prepared 'in the course of the decision-making functions of the government', as well as the agency. That is, they fall clearly within category (i) of paragraph (a) of cl 9(1). Applicability of cl 9(1)(b) 25 The real question is whether the additional requirement found in paragraph (b) is satisfied - would disclosure, 'on balance, be contrary to the public interest'? 26 Mr McInnes gave evidence by affidavit and orally to the Tribunal hearing held 25 August 2003. As to matters relevant to the public interest, Mr McInnes made the following observations: · Review of the 2001 Regulation has proved to be 'highly contentious', with the Law Society and WorkCover holding 'divergent views' · WorkCover, in order to advance government objectives, 'must be in a position to receive advice on a confidential basis' · 'There is a public interest in ensuring that [WorkCover] will not feel inhibited in seeking any further advice for the purposes of the review.' · 'The reports in question address the developing but not finalised position of the [WorkCover] on matters upon which it must advise the Minister.' · 'I would feel constrained in seeking further such advice if the documents sought by the Society were released.' · 'Disclosure of the documents sought by the Society would lead to an unbalanced process of review, in which the Society will obtain an insight into the thinking processes of [WorkCover] without [WorkCover] being in a position to obtain a like insight into the thinking processes of the Society. It is not in the public interest that review of the 2001 Regulation be conducted in such an unbalanced fashion.' · 'Disclosure of such reports from an external review adviser in the present circumstances would inhibit [WorkCover] in formulating the position which will ultimately be the basis of advice to the Minister. If such reports were disclosed to the Society, potentially enabling it to use them in its discussions with the Minister, [WorkCover] could be inhibited in the development of its final position in advising the Minister.' 27 Further evidence on this issue was provided to the Appeal Panel by Bernadette Grant, solicitor, WorkCover, covering the period from mid-July 2003 to the present time. 28 Ms Grant referred to the establishment of the Clarke Review in July, 2003. Its objective was to 'consider the operation of the scale of costs set out in Schedule 6 of the Workers Compensation (General) Regulation 1995.' She was the lead representative of WorkCover on that review. She noted from the minutes of the meeting held 16 July 2003 that this review was described as 'essentially a continuation of the uncompleted process commenced in 2002'. It was agreed that the Chairman's Report 'will not state a conclusion or final opinion', that it 'will not make any recommendations' and that 'the Minister is not bound by the contents of the report'. 29 There were further meetings, including consideration of Law Society proposals. A key issue was the desirability of a different approach to remuneration in respect of complex matters. The Law Society wished also to provide an alternative proposal with respect to legal costs generally. The final meeting of the Clarke Review occurred on 4 March 2004. There were further submissions in writing to the Chairman from both Law Society and WorkCover. Mr Clarke reported confidentially to the Minister on 29 June 2004. 30 Ms Grant referred in her affidavit to the documents the subject of these proceedings. In support of the view that these documents, now more than two years since they were created after a number of decisions have been taken, she made the following observations: · That the advice relates to 'matters of continuing contention between [WorkCover] and the Society'. · The issue of the appropriate costs scales belongs to an environment where - 'Issues continually arise and there will be a need for further discussions to take place in order to ensure that the costs scale is meeting the practical operational requirements of the [Workers Compensation Commission].' · That meetings over the need for a 'costs scale that operates fairly and effectively' are still occurring, and she referred a meeting scheduled subsequent to the date of her affidavit to be held on 18 November 2004. · Referring to the role of the new Workers Compensation Commission, she said that 'it is critical that the Commission have the confidence of the profession and that its operation be secure'. To that end, she said that the ability of WorkCover 'to provide …support to the Commission would be compromised if the documents sought by the Society were disclosed'. · WorkCover's ability properly to discharge its functions would be adversely affected if it could not receive consultants' reports confidentially, especially in cases where the report was 'not in a form considered to cover adequately the tasks which were envisaged by its terms of reference or is a draft which contains errors, misunderstandings or false assumptions'. 31 Mr Richardson, Chief Executive Officer of the Law Society, gave evidence by affidavits, the first filed in the original proceedings before the Tribunal, the second prepared for the present proceedings. He referred to the history of the Law Society's involvement in the review conducted in late 2002 and the further review conducted under Mr Clarke in 2003. He said that the Law Society had understood the 2002 review to be 'collegiate in nature and information provided by participants was to be shared'. 32 As to the 2002 review, he said that the Law Society had co-operated with Ms Castle providing her with information, and that he had understood that information flows would be two-way. For example the Law Society had made available to the process costings prepared by a consultant it had engaged in relation to sample situations. 33 He noted that the Law Society is not seeking access to any advice that passed between WorkCover and its Minister. 34 He said: 'The Law Society believes there is a strong public interest in ensuring that partnerships between government and non-government bodies, such as is embodied in the Review process, remain viable. This can only be achieved if trust and confidence in such processes remain intact. The Law Society, in good faith, shared its information with WorkCover and Ms Castle in the context of the Review, believing this would be reciprocated. The Law Society also seeks to understand the basis upon which the WorkCover Authority disagreed with the matters set out in the Law Society's detailed submissions provided to WorkCover and dated 9 October 2002.' 35 He continued: 'A decision was taken to have a more open process, involving WorkCover, the Workers Compensation Commission and the Law Society as representative of the legal profession. The withholding from a Review process partner of the documents the subject of this action would make a mockery of the process. This cannot be in the public interest.' 36 The affidavit referred to a letter sent to WorkCover pressing for access to the documents, a part of which recited: 'WorkCover retained Ms Michelle Castle, a costs assessor from D G Thomson costs assessors, to assist in the preparation of its submission through providing expert advice. To this end Greg Keating and Charles Vandevord [Law Society representatives] co-operated in discussions with Ms Castle, and in the provision of information to her. On this basis, and considering that the next meeting of the Legal Costs Review Group will be held at 3 pm on 3 December 2002, the Society requests a copy of Ms Castle's report to WorkCover to be made available to the Society by 4.00 pm on Monday 2 December 2002.' 37 In a reply dated 2 December 2002, Ms Kate McKenzie, General Manager, WorkCover gave these reasons for refusing to make available the report: 'Whilst WorkCover has received a draft report from Ms Castle, we do not propose to disseminate such report as it is not in a form considered to adequately cover the tasks which were envisaged by the terms of reference.' 38 The letter also referred to a previous letter from WorkCover dated 27 November 2002. In that letter WorkCover advised that the report would be submitted to the Minister in December. 39 It said: 'Subject to the Minister's agreement, a copy of the final report will be provided to the Law Society as soon as possible.' The letter included the 'detailed response' to the Law Society's submission. The letter then dealt at some length with why WorkCover was committed to events-based costing, and its concern that in many instances the Law Society's submissions were seeking a move away from events-based costing. 40 The Law Society's notes of the meeting that occurred on 3 December 2002 include the following exchanges: Law Society representative: We asked for a copy of the Michelle Castle reports. We made available the reports which were made available to the costs assessor. Her reports would facilitate some understanding. This has been declined. WorkCover representative (Mr McInnes): Yes. At this stage we are not satisfied with the report Michelle did, we are asking her to do some further work in this regard. We do not think it would be productive to circulate it. Come back to our position which is clearly outlined in our response. Refer back to that. 41 The Law Society's concern at the non-availability of the Castle report was pressed again later in the meeting. There was also concern expressed about the possibility canvassed by WorkCover that no joint report would emanate from the process. The Law Society queried whether WorkCover had received an answer from Michelle Castle that it did not like. 42 The Law Society representatives made comments as to the need for something beyond events-based costings in relation to complex matters. 43 It is clear that the Law Society and WorkCover were in disagreement on a number of matters at the meeting. 44 There was a further meeting on 12 December 2002. There was reference in the course of the meeting to the unavailability of information from Michelle Castle. There was also criticism that the review did not have an independent chair. The meeting concluded with Mr McInnes advising that WorkCover would be preparing an independent report to the Minister, and advising the Law Society that it could prepare an alternative submission if it wished. 45 In the further affidavit prepared for the Appeal Panel's proceedings, Mr Richardson asserted that there was a continuing public interest in release of the Castle advice documents. He referred to the Clarke Review conducted in 2003-2004. He noted that the Law Society produced a further detailed submission on costs issues; but WorkCover after informing the Law Society 'that it would be producing a submission …no submission was ever received'. Mr Richardson said that discussions with WorkCover were still continuing over the scale of costs issue. 46 Mr Richardson said that access to the Castle advice would provide the parties with: 'greater scope for the discussions to deal with the specifics of the costs scale and assist the [Law Society] to produce concrete proposals in this area rather than have to deal with generalities and thereby have to produce general proposals and conclusions'. 47 In conclusion he said: 'The production of concrete proposals in the area of costs scales is in the public interest as it will, in turn, facilitate parties being legally represented before the Workers Compensation Commission ('the Commission'). This in turn would benefit parties appearing before the Commission (in terms of equitable compensation outcomes) as well as the broader community (in terms of ensuring that the New South Wales Workers Compensation Scheme produces fair and administratively efficient outcomes).' 48 At the original Tribunal hearing, Mr McInnes of WorkCover was cross-examined document by document as to the claims for exemption. He reiterated the views expressed in his affidavit as to the importance of protecting the various documents, especially the main advice documents, Documents 2, 3 and 5. As to Document 5 (the 27 November 2002 report), he indicated that there was no further work done by Ms Castle in relation to that report beyond that already done for the advice given on 11 November 2002. 49 As to Document 1, he said that release of the proposed methodology would fetter the capacity to receive further advice in relation to the matters in issue, matters which were ongoing. 50 As to Document 4 (the costs scenarios), he noted that these were integral to the advices. 51 Mr McInnes agreed that he would have said something along the lines of the record made by the Law Society representative of his comments at the meeting held on 3 December 2002. 52 As to the review process generally, he said that it had already been envisaged that it would be a two-stage process, one that commenced after 6 months of the new scheme, and one after 18 months of the new scheme. The Clarke Review represented the second stage. 53 At the hearing before the Appeal Panel, Ms Grant gave oral evidence and was cross-examined. She acknowledged that Mr Clarke's report to the Minister had been given to the Law Society on 4 August 2004. She agreed that this resulted from a decision by the Minister that it was appropriate to make available the Clarke Report. 54 She emphasised that the discussions between WorkCover and the Law Society have been ongoing, and that they will continue into the future. She referred to the difficulties that the Workers Compensation Commission had had in persuading the legal profession of the desirability and adeqaucy of the new arrangements, and that in her view release of the documents in dispute could detrimentally affect the development of a relationship that was essential if the Commission was to continue work effectively. 55 She explained that government policy is committed to retention of events based costing and that this was non-negotiable. She felt that release of the Castle advice would 'not promote ongoing productive dialogue with the Law Society'. 56 She agreed that she was trying to give the impression in her affidavit that the documents in dispute did not meet the instructions provided for the preparation of the draft report. She agreed that in the view of WorkCover the documents contained errors, misunderstandings or false assumptions. 57 She felt that release of material with these problems would create difficulty as 'the issues that are dealt with continue to be live issues of debate between WorkCover and the Law Society'. Moreover 'the record has already been set correct in the course of discussions and there would be no benefit at all for anyone in those documents being made available'. 58 As we read her evidence, her view essentially is that the parties are fully aware of the matters in controversy, they have been fully ventilated and there is nothing to be gained in obtaining a fuller understanding of those matters by release of the documents. The only result would be a tendency to distract from the present discussion, and possibly to reignite old controversies to the detriment of the ongoing relationship. She also said that WorkCover is entitled to decide what documents it chooses to release in the course of discussions of this kind. Assessment 59 We will deal first with the Law Society's statement that it had understood the initiating letter from the Parliamentary Secretary to be one which contemplated a fully transparent engagement between the parties over the issues in controversy. In our view the nature of the process later changed. In the case of the Law Society it was, clearly, in its members' interests, in circumstances where it was perceived that members' potential income from workers' compensation would be reduced, for the Society to make available to the process on an unqualified basis its consultant's material. Its members had little to lose, and much to gain by any concessions obtained through scrutiny of its consultant's material. 60 In our view, the Law Society would have appreciated that the Government's immediate interests might not be served by full disclosure of its advice. There is a degree of recognition of this point in Mr Richardson's evidence. He emphasises that the Law Society respects the right of the government to take its own counsel, and not reveal its advice to parties to sensitive discussions. This would particularly be so in a case like the present, where the matters under discussion had a significant political dimension. The Law Society sees this case as different because, it felt, it had entered into an 'open' process at least so far as external consultants' documents were concerned. We do not think that any guarantee of openness can be found in the process as it relates to these reports. Ms Castle was an expert in this field, and she was the only expert to whom WorkCover had turned for confidential advice. 61 Public interest considerations in favour of disclosure relate, as Hennessy DP said in Simpson v Director General, Department of Education and Training [2000] NSWADT 134 at [84], 'to the fulfilment of the democratic objectives of the FOI Act to promote openness, accountability and responsibility of government.' These objectives are promoted through the transparency of government decision-making processes, even when such transparency involves the revelation of information embarrassing to, or critical of, the government agency concerned. 62 As Deane and Toohey JJ said in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, dealing with material that might reveal criticisms of the conduct of government: 'the traditions and standards of our society dictate a conclusion that, putting to one side times of war and civil unrest, the public interest is never, on balance, served by the suppression of well-founded and relevant criticism of the legislative, executive or judicial organs of government or of the official conduct or fitness for office of those who constitute or staff them … Suppression of such criticism of government and government officials removes an important safeguard of the legitimate claims of individuals to live peacefully and with dignity in an ordered and democratic society. Indeed, if that suppression be institutionalized, it constitutes a threat to the very existence of such a society in that it reduces the possibility of peaceful change and removes an essential restraint upon excess or misuse of governmental power.' 63 The public interest in disclosure of government documents, then, is great. Nevertheless, it may be outweighed by other public interest considerations in favour of withholding the documents from general release, at least for a time. 64 WorkCover relied on Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626 and referred to the high level of government at which the report was commissioned, the purpose of the advice - being to enable WorkCover to give advice to the Minister on proposed amendment of legislation, and the sensitive and high level at which discussions occurred within the review panel. The Howard Factors, as they are often called, were set out by Davies J at 634-35: '(a) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed; (b) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest; (c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest; (d) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest; (e) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.' 65 As Ms Allars, counsel for WorkCover, acknowledged, Re Howard has been the subject of some judicial criticism; but Ms Allars maintained that the propositions stated by Davies J remained authoritative. In reply, Law Society argued that the high level of communication should not persuade the Tribunal in favour of non-disclosure as the nature of the review process was collegiate and intended to be one where both participants shared information. Further, the Law Society challenged the authority of Re Howard on this point. 66 Re Howard was considered by the Queensland Information Commissioner in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2. In that case, the applicant sought access to documents relating to advice concerning the consequences for the Queensland Government of the Mabo decision [Mabo v Queensland (No 2) (1992) 175 CLR 1]. The agency refused access to parts of the documents saying that they were internal working documents and that it was contrary to the public interest to disclose them. It sought to rely on the decision in Re Howard for the proposition that it was generally contrary to the public interest for high level correspondence to be disclosed. 67 The Queensland Information Commissioner said of Re Howard at [101] that the Administrative Appeals Tribunal (AAT) had made an 'ill-advised attempt to formulate a list of five general principles to indicate when disclosure of a deliberative process document is likely to be contrary to the public interest'. He continued at [150]: 'the fact of documents being 'high-level' correspondence is irrelevant in itself as an indicator that disclosure of the documents may be contrary to the public interest. It is at best an indicator to alert one to the possibility that these documents may require more careful scrutiny for factors that may point to tangible harm which would follow from disclosure of the actual contents of the documents (which factors, if identified, may therefore have to be weighed in the public interest balancing process against other relevant factors).' He concluded that the respondent had not established that disclosure was not in the public interest and ordered that the documents be released. 68 We agree that the emphasis should be more on the question of what 'tangible harm' will result from release. In that regard the circumstances to which regard is to be had are those that exist at the time the matter is subject to consideration by the Tribunal. It may be that circumstances have changed to a degree that makes a decision that may have been the correct and preferable one at the time of the original determination no longer the correct and preferable one. 69 A similar view of Re Howard was taken in the AAT case of Re Chapman & Minister for Aboriginal & Torres Strait Islander Affairs (1996) 43 ALD 139. In that case, the AAT said at [26] that it was often not recognised that Davies J had envisaged a flexible approach to the identification of what is contrary to the public interest, and that he had qualified his enunciation of principles by saying that the 'extent to which disclosure of internal working documents is in the public interest will more clearly emerge' over time. The AAT held that in the situation before it, the circumstance that the document in question involved 'consultation at the highest level of government between a minister and the Prime Minister' should not 'per se … result in the remainder of the letter in the instant case being withheld in the public interest' (at [29]). See also Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 at [19] (Tunchon). 70 The high level at which communications take place can no longer be said to be a determinative or even a highly influential factor in deciding whether it is in the public interest for documents to be disclosed. This is consistent with the object of the Freedom of Information Act to extend, as far as possible, the rights of the public to obtain access to information held by the Government (s 5(1)(a)). 71 Accordingly, although Ms Castle's report was commissioned in the context of the formulation of policy conducted in a politically sensitive environment at a high level of government, these are merely considerations to be weighed in the balance, and are not determinative. 72 There is a public interest in maintaining the confidentiality of documents when internal deliberations have not been finalised. This point is reflected in considerations (b) and (c) of the Howard Factors. 73 It is apparent that the question of the proper approach to solicitor's costs remains a lively and ongoing subject of consultation between the Law Society and WorkCover. 74 WorkCover submitted that there was an ongoing public interest in the confidentiality of the process as the matters in the report were still under active consideration by government. WorkCover said that disclosure might seriously impair the continuing process of decision-making within WorkCover. It also claimed that Ms Castle's reports remained draft ones, and there had never been a final report. 75 In reply, Law Society said that the passage of the amending regulation in early 2003 represented the end of the 2002 review process. The Clarke Review was a new process involving a new review. It submitted also that although Ms Castle's report was not described as 'final' it was the last report she wrote and there was no suggestion that she was continuing to develop and refine that report. 76 The case law provides some guidance as to the circumstances in which the public interest requires that documents be kept confidential because deliberations are incomplete. 77 Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 (Harris) involved a review of the legal department of a statutory corporation. The person appointed to conduct the review had submitted interim reports recording complaints made against the head of the legal department and had invited her to make comments or submissions on them. The head of the legal department opposed another employee's application for access to the interim report. Beaumont J held at 563 that 'full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest.' This was because disclosure of provisional or tentative views 'could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the [head of the legal department] (at 563). 78 Harris can be distinguished from the present case in that Harris involved a report which was clearly in a draft stage awaiting comments from a person adversely affected by it. In this case, Ms Castle's report was her last report, and is not of a nature involving adverse findings against an individual. 79 Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 concerned a request for access to a report relating to the restructuring of the Police Service. The restructure had partially taken place, but the Commissioner was still involved in making decisions on some matters. In that case, the Tribunal was satisfied that there were 'real grounds for a concern that the Commissioner's continuing process of decision-making could be seriously impaired by a premature release of the Report' (at [26]). 80 In Simpson v Director General, Department of Education and Training [2000] NSWADT 134 the applicant sought access to a draft report prepared by a departmental officer in the context of a review of the rates of pay, working conditions and entitlements of casual teachers. The draft report was never completed because negotiations between the agency and the union broke down. There was a longstanding dispute between the agency and the union over pay and conditions for casual teachers which still existed at the time of the hearing, some 6 years after the report was created. Hennessy DP noted at [88] that 'the negotiations in relation to the terms and conditions of employment for casual teachers have progressed considerably since 1994. The content of the draft report does not represent either the previous or current negotiating position of either party. Even if it did represent the thinking of some of the members of the working party in 1994, that thinking has long been superseded by further negotiations and the pursuit of award applications in the Industrial Relations Commission. An 'in principle' agreement has now been reached between the parties subject to further negotiations on questions of detail. Some of the same issues canvassed in the draft report have still not been resolved, but the content of the draft report is not, in any sense, part of the agency's current 'thinking processes'.' 81 Accordingly, she concluded that the public interest considerations were weighted in favour of disclosure. 82 These cases demonstrate that whether deliberations can be regarded as finalised is a question of degree. In Tunchon the process of departmental restructure was held to be ongoing notwithstanding that some reforms had been implemented. In Simpson, however, a report ceased to be part of an agency's current thinking processes in ongoing negotiations on a contentious topic due to the passing of time and the changed negotiating positions of the parties. 83 Simpson's case has some factors in common with the present. Accepting for the moment the WorkCover characterisation of the present situation, both cases can be said to involve reports which were never finalised. In Simpson's case the draft status of the report did not preclude its release, because negotiations had moved on since that report had been written and it had effectively been finalised by the change in circumstances. This is similar to the present situation in which a report was left in draft, and in which there was no reasonable prospect of it being revisited after the making of the relevant costs regulation. 84 Simpson's case is also similar to this one in that both involve longstanding interactions, negotiations and debates between parties relating to a particular matter for determination. Like Simpson's case there is no point here at which the discussions between Law Society and WorkCover in relation to the costs regulation could be said to have been entirely completed and, to use the words of Hennessy DP, 'some of the same issues canvassed in the draft report have still not been resolved'. 85 Nevertheless, in this case a point of intermediate conclusion, at least, was reached with the making of the new regulation in February 2003. While this regulation remained subject to review, and some of the issues dealt with by the review committee remained relevant, the original process of decision-making ended with the Minister's decision as to the appropriate scale of costs. 86 Another factor WorkCover relied upon was, what may be described, as the 'informational imbalance' that might result from allowing the FOI Act to be used to secure from a government agency advice of a kind that a non-government party to a negotiation could not be forced to release. WorkCover would be disadvantaged, in that the Society would be able to obtain an insight into WorkCover's thinking processes, while WorkCover would not be in a position to obtain a comparable insight into the Society's thinking processes. 87 This 'imbalance' is a necessary result of the legislative policy of confining the right of access to official documents to those documents held by government. Agencies generally are faced with the possibility that non-government parties to consultations and negotiations might activate the FOI mechanism. There has, over the years, since FOI laws were first being proposed, some debate over the desirability of extension of the concept of access to official documents to the private sector, especially to public companies. See further the Australian Law Reform Commission Discussion Paper 59, Freedom of Information, May 1995; R Snell and H Sheridan, commenting on the Discussion Paper at (1995) 60 FoI Review 90 at 96; and R Creyke, 'The contracting out of Government Services - Final Report: A salutation.' www.ag.gov.au/arca/Creyke.html. 88 We do not think that any significant weight can be given to the 'imbalance' argument as such. It is, of course, a different matter if it can be shown that some tangible harm might result for the negotiation process if advice given to a government party might if disclosed adversely affect the public interest in securing an outcome to the negotiation that serves the public interest, as assessed having regard to government policy. 89 It is apparent that disagreement remains between solicitors in New South Wales, as represented by the Law Society, and the government, as represented by WorkCover, over aspects of the costs scales for legal services in workers' compensation matters. Even without that disagreement, it is obvious that there must always be dialogue over issues of remuneration between the peak body representing solicitors and the portfolio agency responsible for seeing that the workers compensation system works satisfactorily. The fact of that ongoing dynamic can not, we think, be given any significant weight in determining whether release of the Castle documents is against the public interest. The adoption of such a view by this Tribunal would have a significant chilling effect on the availability of documents connected with past controversies in ongoing relationships. 90 Another view expressed by the representatives of WorkCover is that Ms Castle in some way did not respond to her brief, and her reports contained mistaken assumptions and the like. Because of the way proceedings of this kind are conducted, and perhaps as a matter of choice by her, we have not heard from Ms Castle on that matter. We find it difficult to understand what risks there are to the effective functioning of government in releasing a document that is seen to be affected by mistakes or mistaken assumptions, especially if the government agency takes the extra step and provides information as to what the mistakes and mistaken assumptions were. We have perused Ms Castle's work. It was produced within tight time frames, and it is not apparent to us that it was not competently responsive to the instructions that she received. 91 Different factors were in play, as compared to that which exist now, when the present request was first made and refused in December 2002. The Government was yet to reveal its response to the recommendations of the 2002 review. Now, the level of disagreement between the parties has eased. The Clarke report to the Minister in 2004 was positive as to the way the parties were now dealing with each other. 92 The decision taken by WorkCover in February 2003 to refuse access to the documents in so far as it relied on the internal working documents exemption, may have been the correct and preferable in the circumstances that prevailed at that time. 93 The position, as the Clarke report indicates, now accepted (albeit possibly begrudgingly by the Law Society), is that time-based costing proposals are not to be revived. The Law Society has continued to deal with WorkCover in a manner which he described as constructive. 94 In these circumstances we do not consider that the interests favouring non-disclosure are as strong as they would have been in the more charged atmosphere of early 2003. 95 This claim to exemption is not made out. We have considered whether the whole of parts of any of the documents should be withheld in reliance on this exemption. No case was put to us along those lines by WorkCover. Their position, as we discerned it, was an 'all or nothing' one. We do not think that there are specific parts of any of the documents that should be protected. 96 These considerations indicate that the disclosure of Ms Castle's report would not, on balance, be contrary to the public interest. Documents containing confidential material 97 WorkCover also sought to rely on cl 13(a) of Sch 1 to the Act to establish that Ms Castle's report was an exempt document. Clause 13 provides: 'A document is an exempt document: (a) if it contains matter the disclosure of which would found an action for breach of confidence, or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest.' 98 It was common ground that Ms Castle's contract contained a clause requiring her to maintain confidentiality. WorkCover submitted that there was an implied term of Ms Castle's contract that draft reports would not be disclosed by WorkCover to third parties. 99 The Law Society argued that cl 13(a) only applies in a situation where the potential disclosure is by a party who is not the owner of the confidence. In this case the confidence was reposed in WorkCover not Ms Castle. It said no term of non-disclosure on WorkCover's part should be implied into the contract as it was not necessary to give business efficacy to the subject matter of the contract. 100 The principles governing actions for breach of confidence were set out by Gummow J in his judgment (in dissent, but for other reasons) in Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 74 ALR 428. His Honour said at 437: 'It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge) (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence and (iv) there is actual or threatened misuse of that information.' 101 This statement was referred to with approval by the New South Wales Supreme Court in Rosewood Advertising Pty Ltd v Hannah Marketing Pty Ltd [2000] NSWSC 1034 at [8]. 102 The main issue here relates to the third of Gummow J's criteria: namely, whether the information in Ms Castle's reports was received by WorkCover in such circumstances as to import an obligation of confidence on WorkCover. The absence of a clause in the contract between Ms Castle and WorkCover requiring WorkCover to maintain confidentiality suggests that WorkCover was at liberty to disclose information in the report. This is consistent with the practical reality of the situation. 103 WorkCover commissioned the report for its own use. WorkCover reserved to itself the choice as to what it would do with the report, and as to the extent to which it would be made available to members of the group or to outsiders. 104 It is not possible to imply a term imposing a duty of confidentiality on WorkCover since, as Law Society submitted, such a term is not necessary to give 'business efficacy' to the subject matter of the contract. Further, there is no equitable duty of confidence arising from the relationship as there is no persuasive evidence of any understanding on Ms Castle's part that the report would be kept confidential. 105 Ms Castle's reports do not contain matter the disclosure of which would found an action for breach of confidence and they are therefore not exempt documents under cl 13(a). 106 As to the alternative possibility that cl 13(b) was applicable, WorkCover relied on the decision of the ACT AAT in Re Dillon & Department of the Treasury (No 1) (1986) 10 ALD 366 for the proposition that it was in the public interest that material communicated in confidence be protected from release. It said that the contract between Ms Castle and WorkCover imposed an obligation of confidence on Ms Castle. The Law Society again pointed out that the agreement between Ms Castle and WorkCover was silent as to the obligation on the part of WorkCover to maintain the confidentiality of advice from Ms Castle. The Law Society also submitted that there was no ongoing reliance on the documents by WorkCover; in fact there was evidence that WorkCover does not want to use Ms Castle's reports because they are embarrassing to WorkCover. 107 This is not a case where the confidential nature of documents creates a public interest such that those documents should not be released. Re Dillon can be distinguished on the basis that it concerned information provided voluntarily and in confidence by private companies to the Treasury. In this case, on the other hand, WorkCover had commissioned a report; and the provision of information and opinions on the part of Ms Castle was governed by contract. The contract places an obligation on Ms Castle not to disclose but places no explicit corresponding obligation on WorkCover. Even if there were legitimate concerns about an obligation of confidence on the part of WorkCover, we agree with the ACT AAT's observations that the need to maintain confidentiality was 'a material, but not a conclusive, consideration'. Secrecy Exemption 108 Clause 12 of Sch 1 to the Act provides as follows: '12 Documents the subject of secrecy provisions (1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions. (2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.' 109 Australian FOI law derived from United States FOI law: see generally, Senate Constitutional and Legal Affairs Committee Report, Freedom of Information (AGPS, 1979). The first and second Australian laws, the Commonwealth Freedom of Information Act 1982 and the Victorian Freedom of Information Act 1982, each had an identical s 38: '38. A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.' 110 The provision which served as the starting point for s 38 was the United States Freedom of Information Act 1966 (5 USC s 552(b)(3)), which protected from access records - '(3) specifically exempted from disclosure by statute (other than section 552b of this title [personal records held by agencies]), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld'. 111 New South Wales' cl 12 does not have the same emphasis on the information held in the agency records being 'specifically' exempted. Instead it seeks to protect 'matter the disclosure of which' would constitute an offence. It will be seen, in comparison, that the original US law is quite exacting. It excludes from para (A) of cl (3) provisions that involve a discretionary element as to whether access is given or not. In the second alternative in para (B) it uses, like the NSW provision, the word 'matter' but in the context of the expression 'particular types of matters'. It will be seen that the Commonwealth and Victorian sections 38 stay relatively close to the approach reflected by the US exemption. 112 (The more recent Queensland law has a strictly limited approach to the question of when a secrecy provision can be invoked as a basis for exemption, and has introduced a further control within the text of the exemption, a public interest test (Freedom of Information Act 1992 (Qld), s 48).) 113 In our view an approach must be adopted to the interpretation of cl 12(1) which preserves the effective operation of the NSW FOI Act. The clearest case where cl 12 would be applicable is one where there is, in the way sought to be reflected in the Commonwealth and Victorian provisions, a close or precise correspondence between the type of matter the subject of the claim for exemption and then a description of matter of the same type in the offence provision. This was the situation that arose in three of the few cases in which cl 12 has been applied by the Tribunal. 114 In St Vincent Welch v Casino Control Authority [2001] NSWADT 89, the Tribunal refused the applicant access to a report to the Casino Control Authority containing the results of investigations into allegations made in the Sydney Harbour Casino Internal Audit Report. 115 Section 148 of the Casino Control Act 1992 contained a very detailed provision headed 'secrecy'. It contained very detailed provisions as to the circumstances in which specified categories of information held by the Authority could be disclosed. It included provisions restricting disclosures on public interest grounds only after the Authority had issued a certificate allowing that. It even went as far as prohibiting the giving of information obtained by a person in the course of their duties to courts unless the Authority had issued a certificate. 116 Moreover, the provision did have a specific exception dealing with the operation of the Freedom of Information Act, and placed some, but not complete, constraints on the circumstances in which disclosure of information pursuant to an FOI request might be permitted. That provision specifically prevented the release of information obtained in the course of an investigation of an application for such a licence. This was the material sought in the case. 117 In N (No 4) v NSW Police Service [2002] NSWADTAP 10, the Appeal Panel affirmed the Tribunal's decision to refuse access to documents which the Police had received from the Police Integrity Commission and which contained allegations against the applicant. The provision in issue, s 56 of the Police Integrity Commission Act 1996, was a highly detailed one, of a similar style to the Casino Control Authority provision. Unlike the Casino Control Authority legislation it did not have any specific provision referring to the FOI Act. The documents in dispute were ones given to the Police Integrity Commission by the Police Commissioner, and related to the applicant. The applicant did not dispute that s 56 applied to the documents, and mounted a case based on the contention that the FOI Act contained an implied public interest override discretion which could be exercised by the Tribunal. The Tribunal, and the Appeal Panel, did not reject such a possibility outright; but decided in the circumstances that any claimed override discretion should not be exercised. 118 In DZ v NSW Police Service [2002] NSWADT 274, the applicant had sought access to documents relating to charges brought against him for paedophile activities which had been provided to the Police by the Police Royal Commission on a confidential basis. In this instance the Royal Commission (Police Service) Act 1994 was relied upon so as to protect 11 documents, and s 56 of the Police Integrity Commission legislation, previously mentioned, as to 2 documents. Both laws had elaborate and detailed secrecy provisions. The Tribunal applied cl 12 without giving any reason other than accepting the agency submission that disclosure 'would' constitute an offence. 119 The Claim in this Case. In this case, WorkCover makes a global claim for exemption of the entirety of the five documents. It is not a selective claim of the kind seen in the three cases mentioned. 120 Its global claim for exemption is put on the basis, essentially, that all employees of WorkCover have an obligation to keep confidential information acquired by them in the course of their duties. The provision relied upon is s 243 of the Workplace Injury Management and Workers' Compensation Act 1998 (the WI Act). This is the Act which establishes WorkCover, and defines its functions, especially as they relate to the workers compensation system and occupational health and safety. The general functions of WorkCover, set out in s 22, include 'to monitor and report to the Minister on the operation and effectiveness of the workers compensation legislation' (s 22(1)(c)) and 'to undertake such consultation as it thinks fit in connection with current or proposed legislation relating to any such scheme as it thinks fit' (s 22(1)(d)). 121 Section 243 provides: ' 243 Disclosure of information (1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made: (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) in accordance with section 72 (Inspection of relevant claims information etc), or (e) in accordance with the requirement imposed under the Ombudsman Act 1974, or (f) with other lawful excuse. Maximum penalty: 50 penalty units or imprisonment for 2 years.' 122 There was no dispute by the Law Society that the documents in dispute were generated by WorkCover in the ordinary performance of its functions. 123 WorkCover submits that as the documents in dispute in this case contain 'information obtained in connection with the administration or execution of this Act' and none of the statutory exceptions in s 243(1) apply, therefore they constitute, in their entirety, 'matter' protected by cl 12. It will be seen that this provision gives no guidance as to whether particular classes or categories of information are to be protected. 124 The force of this submission is said to be strengthened by the fact that, unlike, for example, the Casino Control Authority case (St Vincent Welch) and the position under the Local Government Act 1993, s 664 (a provision considered in Eyes v Wyong Shire Council [1999] NSWADT 139), there is no exception in s 243(1) directly addressing the possibility of disclosure under the FOI Act. 125 WorkCover also derives support for its reliance on such a general and non-specific provision from the Tribunal's decision in Saleam v Director General, Department of Community Services and ors [2002] NSWADT 41. The provision under consideration in that case was very similar to one upon which WorkCover relies. Section 254 of the Children and Young Persons (Care and Protection) Act 1998 provided: ' 254. Disclosure of information (1) A person who discloses any information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made: (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act or the regulations, or (c) for the purposes of any legal proceedings arising out of this Act or the regulations, or of any report of any such proceedings, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974, or (e) with other lawful excuse. Maximum penalty: 10 penalty units or imprisonment for a period not exceeding 12 months, or both.' 126 There the applicant had had a parental relationship to two children. He was seeking access to information about the mental health of the children's mother and the paternity of the children (many years after he had ceased living in the household). The Tribunal said at [64]: '64 On its face the secrecy provisions exemption could apply to the information held in the Department's child protection files. An Intake Report would ordinarily contain 'matter the disclosure of which would constitute an offence against the Act'.' 127 It will be seen that the Tribunal (which had already found the documents exempt on other grounds) did not give any detailed reasons for this conclusion. On the other hand, in our view, it is difficult to conceive of any case in which the disclosure of an Intake Report in the kind of circumstances under consideration in Saleam's case could ever be proper. There is a degree of sensitivity about information identifying a notifier of alleged maltreatment. These reports contain highly personal information bearing on a child's welfare. 128 Saleam provides an example of a case where it may be possible to conclude, with confidence, that the material in issue should be treated as exempt, even though the secrecy offence provision simply deals in general terms with the kind of information disclosure of which would constitute an offence. The present case is much less clear. We do not regard Saleam as providing guidance in resolving the present case. 129 WorkCover also relies on the looser text of cl 12, as compared to the Commonwealth and Victorian examples, to support the submission that the NSW exemption was intended to have a broader and more generous sphere of operation; and that, therefore, only limited weight can be given to the many Commonwealth and Victorian cases which have turned on the question of whether the offence provision relied upon is sufficiently 'specific' in its terms to confer protection on the information in dispute. 130 Provisions like s 243 of the WI Act are a commonplace of public service administration in Australia. There are many examples in NSW law, some being: the Children (Detention Centres) Act 1987 (NSW) s 37D, Environmental Planning and Assessment Act 1979 (NSW), s 148; Valuation of Land Act 1916 (NSW), s 11, Mining Act 1992 (NSW), s 365, Mines Inspection Act 1901 (NSW), s 81; Community Welfare Act 1987 (NSW), s 76; the Retirement Villages Act 1999 (NSW), s 200; and the Local Government Act 1993, s 664 and the Children (Care and Protection) Act, both already mentioned. 131 As the Senate Committee report of 1979 observed of Commonwealth Government practice at [21.1]: 'Indeed it appears to be a fashionable contemporary drafting practice to insert in every new statute a standard provision making it an offence for an official governed by the statute to disclose without authorisation any information of which he has gained knowledge officially'. 132 The Minister introducing the Bill was less than clear as to what role cl 12 was seen as playing in the scheme of the FOI Act. In the Second Reading Speech to the Freedom of Information Bill (No 2) 1988 he said (Legislative Assembly, Parliamentary Debates (10 November 1988) 3165): 'The secrecy exemption has caused consternation in some circles, but the principles behind its inclusion in this Bill is sound. Freedom of information legislation is not an appropriate vehicle for striking down specific secrecy provisions in other legislation. These provisions should not be rendered void by an across-the-board application of the Freedom of Information Act.' 133 All that can be gleaned from these words is that the Minister was concerned that somehow the FOI Act might render secrecy provisions ineffective if a provision like cl 12 was not included in the FOI Act. There is nothing to suggest that the Minister intended the secrecy exemption to operate as a vehicle which would, in effect, allow an agency to refuse any agency document on the basis that disclosure under the Freedom of Information Act would infringe a global provision conferring confidentiality on all documents held by the agency. 134 Indeed, cl 12(2) appears to have been an attempt to ameliorate that possibility. The provision, to reiterate, is: 'A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence.' 135 This seems to be a roundabout attempt to cover the situation where a FOI access applicant is seeking documents about himself or herself; reflecting the qualification found in the US's s 552(b)(c). That is how Cossins, Annotated Freedom of Information Act NSW (1997) [112.7] interprets the provision: 'Clause 12(2) is designed to preserve a person's right of access to any personal or other information tha the Government is lawfully permitted to disclose to them. For example, if disclosure of information would not be an offence under a secrecy provision because disclosure is permitted to the person from whom the information was obtained, then disclosure will be permitted under the FOI Act. This provision, thus, places a practical limitation on cl 12(1) and confines the scope of cl 12(1) to the terms of the secrecy provision in question.' 136 At the time of its introduction, the Government promised a review within two years of cl 12, with a view to prescribing a list of secrecy offence provisions to which the cl 12 exemption would apply. This has never occurred. Some further light on the Governement's intention at that time is provided by the debate on the bill in committee. The Australian Democrats moved for repeal of cl 12. The Government rejected the motion, giving the following reasons (Legislative Council, Parliamentary Debates (8 December 1988) 4687): The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-President of the Executive Council) [5.57]: … The proposed amendment seeks to delete the secrecy exemption. It is not appropriate for general legislation, such as the Freedom of Information Bill, to override specific secrecy provisions in many other measures. For a variety of reasons in those other measures the Parliament made a decision that the information ought to be secret. The Premier has indicated that consideration will be given to reviewing the secrecy provisions of the individual legislation. We will do that. Legislation will be assessed to ascertain whether it is appropriate to remove secrecy provisions from specific Acts, rather than have a freedom of information bill which would eliminate all secrecy in one fell swoop. If this amendment is successful, not one member of this House would have any idea what he or she was doing. I would not have a clue how many different secrecy provisions are included in individual statute laws in this State. The acceptance of this amendment may jeopardize someone's life, if secrecy provisions in other legislation that are designed to protect life are eliminated. For example, witness protection is aimed at keeping witnesses away from those who might harass them. A few hours ago similar legislation was passed to protect witnesses. I remember an occasion when a bank teller who had witnessed an armed hold-up in a bank gave information to the police - her name and address - and soon after that the bank robber telephoned her and threatened that he would blow her to pieces if she gave evidence against him in court. Do honourable members wish to eliminate protection that is provided by such secrecy provisions? It is irresponsible. The Government rejects the amendment. 137 Were this Tribunal to accede to WorkCover's submission, and give cl 12 the broad, literal interpretation it advocates, the FOI Act would, as a practical matter, cease to have any application to many parts of the New South Wales public service. In our view a purposive approach to the application of cl 12(1) must be taken, one which ensures that the objectives of the FOI Act are maintained, especially in situations where there secrecy provision relied upon does not refer specifically to the kind of information for which exemption is claimed. Similar thinking is, we note, reflected in the context of the law of confidentiality: see the first of the Gummow Principles quoted at para [100] above. 138 We note also that s 61 of the FOI Act requires the agency to justify a determination. As Kirby P noted in Commissioner of Police v NSW District Court (Perrin's case) (1993) 31 NSWLR 606 at 625, 'the question [in relation to each exemption] is not why the information should be disclosed but why it should be exempted'. 139 The objectives of the FOI Act are: ' 5 Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. (4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.' 140 The Castle documents contained professional advice of a usual kind. It was obtained to assist WorkCover in its negotiations to achieve implementation of Government policy. This kind of advice is often released selectively to bolster positions taken in deliberations and negotiations. Sometimes it is released in whole. There is no specific guidance in the legislation as to how such advices are to be treated. 141 The documents, we recognise, would have had some sensitivity at the height of the conflict between WorkCover and the Law Society in the run-up to the 2003 legislation. But that sensitivity is now much less. Some marker of this is provided by the fact that the Clarke Report was released by the Minister not long after its provision in confidence. 142 Neither this ground (that release would be an offence) nor the confidentiality ground was relied upon by WorkCover in the access application. We, of course, accept that it is always open to agencies in proceedings before the Tribunal to vary or add to the grounds of exemption upon which they rely. Nonetheless we have some doubt as to whether there was any concern at agency level that FOI disclosure might somehow breach s 243. We doubt whether WorkCover officers have at any stage seriously seen this as a case where the barrier to provision of the document involved, for the agency, any concern about possible transgression of s 243. This point received no emphasis in their affidavits. 143 The dynamic operating in this process has been, and may well remain, one of selective provision of information between the parties to the extent that each sees provision as serving its interests in the resolution of the controversy, with the Government - naturally - in making choices as to release of information being keen to secure an outcome consistent with its overall policy objectives. There is, as noted earlier, a degree of imbalance in the relationships on this issue, because of the availability of the rights under the FOI Act to non-government parties. 144 The following is a list of some factors we consider should be taken into account in determining whether an agency has discharged the onus in the instant case of justifying non-disclosure of information, because its 'nature' is such that disclosure would constitute an offence: (a) the degree of direction given by the legislation to the agency as to how the kind of information under notice is to be managed and divulged; (b) the breadth of any powers given to the agency to release the kind of information under notice; (c) the intrinsic sensitivity of the information; and (d) the likelihood that information of this kind would ever be released to the applicant having regard to the wider circumstances of the relationship between the applicant and the agency, to the extent that they are known. 145 We have referred to three previous decisions of the Tribunal, where the legislation was highly directive. In the fourth, the Saleam case, there was, like here, no specific direction given by the legislation. Under global confidentiality provisions maximum latitude and discretion as to how its information is handled is left to the officers of the agency. It is simply a matter of operational judgment. 146 Despite the lack of direction found in global provisions, the Saleam case illustrates a situation where factors (c) and (d) in the above list come strongly into play. It would rarely be acceptable to give a departed parent notifier information relating to the later living circumstances and welfare of the children or the custodial parent. Further Issues 147 It will be seen that the approach by the Appeal Panel to the question presented by this case to the application of cl 12 does not depend on any detailed analysis of the meaning of exceptions (b) and (e). Our approach is different from that put to us by the Law Society. The Law Society's sought to bring its FOI application within the exceptions to the offence provision. 148 WorkCover makes two replies to those submissions: (a) that the closing words of cl 12(1) make consideration of the exceptions irrelevant; and (b) that, if the exceptions, fall to be considered, they are not applicable to the present circumstances. The effect of the closing words of cl 12(1) 149 Cl 12(1) protects 'matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions' (emphasis added). The argument is that, therefore, the only question is whether an offence is created. It is not open to the applicant to seek to bring their case within the exceptions. As it happens, based on the preferred approach of the Appeal Panel, this argument, even if it were to be accepted, would not defeat the applicant's case. 150 These words appeared first in the Commonwealth's section 38, which was copied in the Victorian legislation, both quoted above. The words have as their origin issues that had arisen in the interpretation of the United States exemption, s 552(b)(3), already quoted. The history of the closing words was reviewed by Hall DP in Re Tony Lianos and Secretary To The Department Of Social Security (Unreported, AAT, 19 February 1985). He noted that US courts had confined the operation of this exemption to absolute, unqualified, prohibitions. 151 Unlike the US provision, Hall DP President observed of Australia's approach: 's.38 allows that a prohibition on disclosure may be 'absolute' or 'subject to exceptions or qualifications'. Whilst the reference to 'exceptions or qualifications' clearly acknowledges that, for the purposes of s.38, an enactment prohibiting disclosure of documents may allow for relaxation of that prohibition in certain circumstances, the question is whether, in respect of s.17 of the Social Security Act , those 'exceptions or qualifications' are so extensive as to deny that section the character of an enactment 'prohibiting disclosure.' 152 The latter reference to s 17 of the Social Security Act needs to be read in the context of the words in s 38 that precede these words. Section 38 protects documents if there 'is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications' (emphasis added). 153 Hall DP's explanation is helpful. In our view the words 'whether or not the provision that creates the offence is subject to specified qualifications or exceptions' as their origin and purpose, an attempt to include both absolute and qualified prohibitions on disclosure within the scope of the secrecy provisions. It is not intended to create a blanket prohibition on disclosure under the FOI Act in cases where the qualifications and exceptions in a secrecy provision would permit disclosure. 154 The reason for the obscurity of the words, as used in the NSW FOI Act is that the NSW drafted chose to attach the phrase to a primary text different from the Commonwealth one. Because Australian FOI law clearly has as its antecedent the US law (see generally the Senate Report of 1979, previously mentioned, at ch 21) it would have made more sense to retain the terminology of the Commonwealth provision. But instead, New South Wales avoided the word 'prohibition' and replaced it with 'the provision that creates the offence'. The result is that the subsequent words 'subject to specified qualifications or exceptions' are otiose. By using the word 'provision' the legislature has, in any case, allowed for the possibility that a provision that contains a prohibition subject to qualifications and exceptions is covered by cl 12. Exceptions (b) and (f) 155 The Law Society's position is if disclosure is permissible under the FOI Act then that is consistent with the lawful administration of WorkCover's functions under the WI Act, and therefore disclosure could not amount to an offence; and therefore exception (b) is satisfied. 156 Alternatively the Law Society refers to exception (f) - 'with other lawful excuse', as contemplating the possibility that disclosure pursuant to the FOI Act would constitute a lawful excuse. Exception (b) 157 As already noted, the phrase is found in many offence provisions. 158 Despite the large number of such provisions, there appear to be no cases illuminating the meaning of the phrase 'administration ... of this Act' in the context of disclosure of information. 159 What case law there is points to the opacity of the terms of 'administration' and 'execution'. 160 The word 'administration' was considered by the Full Court of the Supreme Court of Victoria in Glenister v Dillon [1976] VR 550. The case involved the jurisdiction of the Ombudsman to investigate 'administrative action'. Gillard J held at 557 that in the context of the Ombudsman Act 1973 (Vic) 'administrative' referred to 'the executive part of government' and was used in contradistinction to the judicial and legislative functions. The phrase 'administration of this Act' has also been considered in the context of regulation-making powers, but these cases provide little guidance in the present context: see for example, Shanahan v Scott (1957) 96 CLR 245. 161 The meaning of 'execution' when applied to an Act was considered by the High Court in Rogers v Jordan (1965) 112 CLR 580. Kitto J observed that the words 'in the execution of this Act' restricted an exercise of power to 'the better effectuation of the purposes of the Act' in question. The power was validly exercised when it was exercised 'in good faith for the purpose of assisting in the carrying of the Act into execution' (at 589). Taylor J held at 590 that the phrase meant that the power could be 'exercised only if exercised in good faith for a purpose associated with the due administration of the Act'. 162 The phrase 'administration or execution of this Act' in the WI Act thus has a broad compass. It includes all activities of the executive arm of government connected with overseeing the operation of the WI Act, effecting the purposes of the Act or assisting the carrying of the Act into execution; read in light of the statutory functions of WorkCover set out in s 22. 163 The breadth of the activities of a government agency include the managed receipt and disclosure of information that it possesses. 164 In the present instance the applicant for access was a party to a review in which the agency participated. There was no constraint on the agency in disclosing the documents in its possession if the 'due administration and execution' of the Act was served. So much is reflected in the decision of the Minister to release the Clarke report. He would, it would seem, be committing an offence had he disclosed it without forming a view as to what is required by the 'due administration' of the Act. 165 The modern administration and execution of legislation takes place in a framework of open government, where administrators are frequently required to give reasons for their decisions, administrative decisions are generally subject to review, the Ombudsman takes an active role in ensuring the integrity of administrative processes and official information is publicly accessible, except where strong public policy reasons require otherwise. The WI Act was passed in 1998, when those principles were well established in New South Wales legislation and case law, and the words 'administration and execution of this Act' should now be interpreted having regard to well known aspects of the functioning of government in a democracy. 166 Accordingly in our view, the 'due administration' of the Act includes adherence to the requirements imposed by accountability statutes of government. 167 The FOI Act plainly seeks to limit the ability of government to engage in managed disclosures, the way in which disclosure was conducted in the days before Freedom of Information legislation. In this instance WorkCover has failed to satisfy us that any of the other exemptions applied. The 'due administration' of its responsibilities is not, in our view, placed at any risk at this point of time by the release of the documents in dispute. This provision should not be interpreted so as to defeat the FOI regime in a case of this kind. 168 The disclosure of a consultant's report to an interested party in response to a freedom of information request would be consistent with the due administration and execution of the WI Act. Exception (f) 169 As to the alternative argument, WorkCover submitted that disclosure in response to an FOI request was not a 'lawful excuse' under paragraph (f), since there was no 'answer, defence, justification or other legal right or immunity' by which any of the documents could be disclosed, citing Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [17]. It submitted in this regard that disclosure in response to a request under the FOI Act could not constitute such a lawful excuse, because cl 12(1) made it plain that the FOI Act is not intended to require officers to disclose material, if disclosure would be an offence against the Act. 170 We note in this context that s 65 of the FOI Act provides that if a person releases a document under the Freedom of Information Act in good faith, then he or she will not be guilty of an offence. 171 For reasons similar to those given in connection with the meaning to be given to exception (b), we are of the view that the defence of 'lawful excuse' could be applied to release under the FOI Act. 172 The phrase 'lawful excuse' was considered by the High Court in Attorney-General (Cth) v Breckler (1999) 197 CLR 83 in the context of a regulation which provided that a trustee must not fail to comply with an order without 'lawful excuse.' 173 Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ held that the trustee would have a 'lawful excuse' for failing to comply with the order if he or she has 'a reason recognised by law as sufficient justification for such failure, whether by way of answer, defence, justification, or other legal right or immunity' (at p 103, [17]). A similar approach was taken by the Victorian Supreme Court in Signorotto v Nicholson [1982] VR 413 when it held that 'lawful excuse' in the Victorian Evidence Act meant a valid excuse supported by law (at 417). 174 On this reasoning, the defendant in s 243 offence proceedings could argue that the release was effected pursuant to the FOI Act. Provided it was not a mischievous release done in bad faith, we do not see any reason why such a release would not found a defence. A valid release under the FOI Act is 'a reason recognised by law' for disclosure of documents in the possession of an agency. The Tribunal is empowered to make such a release, and s 65 of the FOI Act (immunity from offence provisions if disclosure made under the Act in good faith) would appear to provide some endorsement of this view. Conclusion 175 The FOI Act, s 61, provides: ' 61 Burden of proof In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.' 176 For the above reasons, the agency has not in our view discharged its onus in this case. 177 In our view the only exemption claim of significance in this case was that made in connection with cl 9 (the internal working documents exemption). As indicated in our reasons, there was, we think, a strong case in the circumstances that prevailed in February 2003 for relying on the exemption. That case is, we think, weakened by the passage of time, the lessening of the tension between the parties and the value that might be served by a 'clearing of the air' over the contents of the Castle documents. We do not think there is any great likelihood that the future conduct of the relationship between the parties will be set back to the extent suggested by the officers of WorkCover in their evidence. Order 1. The respondent's determination is set aside. 2. The respondent is to grant access, pursuant to section 25 of the Freedom of Information Act 1989, to all the documents in dispute.

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