Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet

Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet - [2019] NSWCATAD 6 - NSWCATAD 2018 case summary — Zoe

Background

In October 2008 Shenhua Watermark Coal Pty Ltd (Shenhua) was granted an exploration licence - EL7223 - in the Liverpool Plains region of NSW. The licence gave Shenhua an exclusive right to explore for resources, but not to begin mining. The area of EL7223 included fertile agricultural land, often described as "black soils", and less fertile land known as the "ridge lands". Shenhua paid the State of NSW $301 million when EL7223 was granted. Shenhua also agreed to pay the State $200 million on the grant of a mining lease in any part of the area of EL7223.
The exploration licence was renewed in 2012 and a further renewal was sought by Shenhua in 2016. At the time of the hearing, the 2016 renewal application was under consideration by the relevant Minister.
During the first half of 2015 Shenhua obtained approvals from the State and Commonwealth to develop an open cut coal mine within the area of EL7223. The resulting Watermark Coal Project Development Consent related to an area in the ridge lands of EL7223.
In late 2015 or early 2016 the NSW Government adopted a new policy that coal mining would not occur on or under the black soils of the Liverpool Plains. The Department of Industry was responsible for identifying options for dealing with EL7223 and with another exploration licence in the Liverpool Plains region held by BHP Billiton. This function was later transferred to the Department of Planning and Environment.
On 11 August 2016, the NSW Government announced that it had secured a buyback of the exploration licence held by BHP Billiton. It also announced that negotiations had commenced with Shenhua to excise those parts of EL7223 which encroached on the black soils of the Liverpool Plains. Those negotiations continued for some time.
Almost a year later, on 12 July 2017, the Government announced that an agreement had been reached with Shenhua which would result in just over half of EL7223 being handed back, with the State refunding around $262 million from the original amount paid by Shenhua when the licence was granted in 2008. On the same day, Shenhua announced that it had agreed to pay $200 million to the State upon the grant of a mining lease.

[8]

The legislative scheme

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. Once the information is established to be of a kind specified in Schedule 1, no further inquiry is made.
In these applications the respondents maintain that two categories of Schedule 1 information are relevant: Cabinet information and information subject to legal professional privilege.
In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. Several are relevant to these applications and are discussed further below.
In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
I will deal in turn with each basis upon which the respondents submit access to the information sought should be refused.

[9]

Cabinet information

Clause 2 of Schedule 1 concerns Cabinet information and provides as follows: 2 Cabinet information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents: (a) a document that contains an official record of Cabinet, (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e). (2) Information contained in a document is not Cabinet information if: (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence. (3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1). (4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. (5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet.
The respondents submit that certain information sought by the applicant falls within various sub-clauses of clause 2. In considering whether the information is Cabinet information, the Tribunal is limited to deciding whether there are reasonable grounds for the agencies' claims that the information is Cabinet information: s 106 GIPA Act.
The words "reasonable grounds" are to be given their ordinary meaning and it will usually not be helpful to paraphrase the term (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423). A determination of whether there were reasonable grounds for a claim "involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue" (McKinnon, at 430).
It was generally agreed by the parties at the hearing that, if a document contains government information that is Cabinet information and government information that is not, the document cannot be redacted so that access is given to the information that is not Cabinet information. If a document meets the description of any of the paragraphs (a) to (f) of cl 2(1), all the information in the document is subject to an overriding public interest against disclosure. (Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353).

[11]

Document 28

Document 28 is a briefing to the Minister for Industry entitled "Ministerial Briefing - Approval of Shenhua Deeds". Documents 29 and 30 are attachments to this document.
Mr Charlie Dowsett, an Executive Director with the Department of Industry, gave evidence that he was involved in the negotiations between the State of NSW and Shenhua in relation to EL7223. He states that Document 29 is a draft deed embodying the agreement between the State and Shenhua for partial relinquishment of EL7223 and Document 30 is a draft deed embodying the agreement between the State and Shenhua that Shenhua would pay $200 million to the State upon the granting of a mining lease.
The applicant states that Document 28 appears to relate to a request for the Minister to approve two draft deeds relating to an Exploration Licence and a Mining Lease to be granted under the Mining Act 1992. The applicant states that exploration licences and mining leases are statutory approvals granted by the Minister under the Mining Act and are public documents. Furthermore, there is a process of consultation and objection involved in the granting of such approvals. The applicant states that it would be a curious outcome if an agreement or document relating to the granting of a statutory approval, which involves consideration of the application by the decision-maker prior to an exercise of discretion under the Mining Act, and in relation to which others must be consulted and have a right to object, could be withheld on the basis that it recorded a Cabinet decision or deliberation.
The applicant, of course, is in a difficult position as it does not know the precise contents of the document under consideration. That the document may deal with matters that involve statutory approvals for matters which, in some form or other, may end up in the public domain, does not mean that cl 2(1)(d) does not apply. As the respondents point out, Cabinet routinely deliberates upon, and makes decisions about, documents, matters and things that relate to statutory processes and which might be described as "public" in some sense. That does not of itself, however, render Cabinet's decisions or deliberations public.
That being said, the applicant has provided evidence which indicates that information about the Government's dealings with Shenhua were released to the public through statements made by the Premier and Ministers. Clause 2(2)(a) of Schedule 1 provides that information contained in a document is not Cabinet information if public disclosure of the document has been approved by the Premier or Cabinet.
The applicant submits that cl 2(2)(a) should be interpreted to apply to a document containing Cabinet information where that information has already been disclosed to the public with the approval of the Premier or Cabinet, even if disclosure of the document itself has not been specifically approved by the Premier or Cabinet. The applicant therefore argues that Document 28 (and other documents) which contain publicly disclosed information are therefore not Cabinet information.
Clause 2 of Schedule 1 clearly distinguishes between "information" and "a document". This is apparent in all of the sub-clauses within cl 2(1) as each of those sub-clauses refers to "Cabinet information" contained in "a document" (see cl 2(1)((a) - (f) set out above). Clause 2(2)(a) specifically refers to public disclosure of "the document" which contains the information having been approved by the Premier or Cabinet. On a plain reading of the text it is the document itself which must have been approved for public release, not information contained in that document. There is no indication in any of the evidence that Document 28 has been approved for public release by the Premier or Cabinet. Clause 2(2)(a) therefore does not apply.
In any event, even if the applicant's submissions were correct, the evidence of Mr Dowsett is that the briefing references and summarises a number of Cabinet decisions. The respondent states that, while aspects of these Cabinet decisions are now a matter of public knowledge, other aspects are not. Mr Dowsett identified to the Tribunal the Cabinet decisions referenced in the document and highlighted the parts of those Cabinet decisions which have not been made public. Mr Dowsett's evidence was detailed and carefully delineated the relevant Cabinet deliberations or decisions and how they are referred to in the document and I accept his evidence in that regard.
I am satisfied that DPE has reasonable grounds for its claim that Document 28 contains Cabinet information because the document was prepared after Cabinet's deliberation or decision on various matters that would reveal or tend to reveal information concerning those deliberations or decisions. DPE's decision in respect of this document is therefore affirmed.

[12]

Documents 29 and 30

Documents 29 and 30 can be dealt with together. They are attachments to Document 28, being, respectively, a draft Exploration Licence Deed and a draft Mining Lease Deed.
DPE submits that the documents also come within the ambit of Sch 1 cl 2(1)(d). The Applicant submits that, based on the decision in Re Toomer, while noting a document does not have to quote Cabinet's decisions verbatim, the document is still required to record the actual "thinking processes" or "conclusions as to courses of action" of Cabinet in some manner. This according to the Applicant, would require the document to contain some summary or discussion of: 1. the various relevant considerations taken into account by Cabinet and its thinking processes in relation to those considerations; or 2. the resolutions reached by Cabinet in respect of those considerations following the conclusion of its thinking processes.
The Applicant states that a deed generally contains precise, legal drafting and does not contain a record of other deliberations, considerations, resolutions or determinations that may have been discussed by the parties at one time or another. Further, a deed does not record the various "thinking processes" or "conclusions as to courses of action" of the parties. The Applicant submits that the mere fact that Cabinet may have deliberated on the subject matter of the draft deeds, or whether or not to enter into the deeds, does not mean that Cabinet's deliberations or decisions in respect of the subject matter are revealed in the deeds.
The respondent, quite rightly in my view, points out that Re Toomer is not authority for the proposition that Sch 1 cl 2(1)(d) requires the document in question to contain a summary or discussion of considerations or resolutions of Cabinet as envisaged by the Applicant. The language in Sch 1 cl 2(1)(d) is very broad and applies to "a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions". There is no requirement that the document reveal or tend to reveal Cabinet's deliberations or decisions themselves.
Mr Dowsett and Mr Tim Holden, General Counsel and Chief Risk Officer, Department of Industry, gave evidence about the process leading up to and including preparation of the draft deeds.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The applicant makes the same arguments concerning public disclosure and the applicability of Sch 1 cl 2(2)(a) to documents 29 and 30. Again, these documents have not been approved for public release by the Premier or Cabinet and cl 2(2)(a) has no application. In addition, as with document 28, it is apparent some of the information in the deeds is Cabinet information which has been publicly disclosed, for example, the sum the State is to refund Shenhua, but I am satisfied based on the evidence of Mr Dowsett in particular that the deeds also reflect aspects of Cabinet's decision which are not public knowledge.
I am therefore satisfied that DPE has reasonable grounds for its claim that Documents 29 and 30 contain Cabinet information because the documents were prepared after Cabinet's deliberation or decision on various matters that would reveal or tend to reveal information concerning those deliberations or decisions. DPE's decision in respect of these documents is therefore affirmed.

[14]

Document 1

Document 1 is a briefing from the Director, Resources and Land Use, DPC to the Premier.
DPC claims that there is an overriding public interest against disclosure of government information contained in Document 1 on the basis of Sch 1 cl 2(1)(e). Clause 2(1)(e) protects documents prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal "the position" that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet.
The Applicant, relying on the decision in Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353, submitted that the breadth of the application of cl 2(1)(e) is limited to documents that contain information concerning a matter about which Cabinet has in fact deliberated or made a decision. At the hearing the respondents submitted that the decision in Robinson (which was then on appeal) should be treated with caution and submitted that the better view is that the provision extends to documents that reveal or tend to reveal the position of a Minister irrespective of whether he or she ever took the position to Cabinet. The fact that the Minister considered taking the position, or had been recommended to take it is sufficient.
Since the hearing, the Appeal Panel has given its decision on the appeal (Transport for NSW & Ors v Robinson [2018] NSWCATAP 123). The Appeal Panel held the Tribunal had erred in Robinson and its decision gives support to the position as put forward by the respondents in these proceedings. As the issues had already been canvassed by the parties in their submissions, I saw no need to seek further submissions in light of the decision of the Appeal Panel.
The Appeal Panel stated at [19]: A plain reading of the provision makes clear that it involves the following steps. (1) there must be a document prepared either before or after Cabinet's deliberation or decision on a matter; (2) it must reveal or tend to reveal a defined position; and (3) the defined position is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet.
The clause is not limited to information that was actually deliberated upon or went to Cabinet and is intended to cover material prepared in advance of a potential Cabinet meeting, even if that meeting does not in fact occur, for example, due to a change in government [20-21].
The applicant also referred to the decision of the Tribunal in Cooper v NSW Ministry of Health [2018] NSWCATAD 37 where, at [32], the Tribunal stated that cl 2(1)(e) is limited to documents that reveal or tend to reveal "the position" a Minister is taking (or has taken, will take, is considering taking, or has been recommended to take) on a matter to Cabinet and does not necessarily apply to a document which reveals or tends to reveal all or several of the options or positions in question. The Applicant therefore submitted that documents which reveal or tend to reveal a range of positions or options which could be taken to Cabinet by a Minister do not come within the ambit of cl 2(1)(e).
The decision in Cooper, if it indeed is authority for the proposition that the clause only applies to a document containing only one position of a Minister, is not, contrary to the submissions of the applicant, supported by the words of the cl 2(1)(e) itself or by usual practice whereby Ministers routinely consider several options and, indeed, often take a number of options to Cabinet for consideration. In my view, there is no reason for limiting its operation to a document which would reveal or tend to reveal the position of a Minister, as in one position, rather than to a range of options taken to Cabinet, under consideration or recommended.
In my view the proposition is also not supported by the decision of the Appeal Panel in Robinson. While this issue was not the subject of direct discussion in that case, as set out above, the Appeal Panel stated that the document must reveal or tend to reveal "a defined position" and the "defined position" is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet.
A "defined position" could be read as referring to a single position. However, to do so would be to ignore the practical reality of the Cabinet process. Ministers routinely consider more than one position and their departments often recommend several options for consideration. On occasions, Cabinet itself requires Ministers to bring forward a range of options for its consideration.
As the respondents point out, if the GIPA Act only protected from disclosure one position on a particular matter, this would have a chilling effect on Cabinet deliberations and negatively impact decision-making and policy development within Cabinet. Indeed, this is the very point made by the Appeal Panel in Robinson as to why cl 2(1)(e) cannot be limited to information that was actually deliberated upon or went to Cabinet. There the Appeal Panel referred to the High Court's unanimous judgment in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615-616 where the court referred extensively to the need to keep the deliberations of Cabinet, which could often entail robust discussion of differing views and which may involve the exploration of more than one controversial path, confidential.
In my view, for the reasons enunciated by the High Court and the Appeal Panel, to confine cl 2(1)(e) to one position is not in keeping with the purpose of the legislation. I do not understand the Appeal Panel's reference to "the defined position" to be a reference to a single position but simply to the position - whether that be one option or a range of options - which the Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet. To do otherwise would be to limit the provision in a way which cannot have been intended.
Turning now to Document 1, the document is a brief to the Premier which summarises an options analysis table which is attached to the brief (Document 1a in these proceedings). Document 1a is a document prepared by the Department of Industry.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
I have concluded below that DPC has reasonable grounds for its claim that Document 1a contains Cabinet information because Document 1a is a document prepared before Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that the Minister for Industry was considering taking, or had been recommended to take, on the matter in Cabinet.
Document 1 is a summary of Document 1a and, as such, I am satisfied that DPC has reasonable grounds for its claim that Document 1 contains Cabinet information because Document 1 is a document prepared before Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that the Minister for Industry was considering taking, or had been recommended to take, on a matter in Cabinet. Furthermore, Document 1 as a briefing to the Premier, reveals or tends to reveal the position that the Premier was considering taking, or had been recommended to take, on a matter in Cabinet.
This aspect of DPC's decision is affirmed.

[16]

Document 1d

DPC claims that there is an overriding public interest against disclosure of government information contained in Document 1d on the basis of Sch 1 cl 2(1)(c) and cl 1(g) of the Table to s 14. Document 1d is referred to in the open evidence as an untitled attachment to Document 1.
Clause 2(1)(c) protects documents prepared for the purpose of being submitted to Cabinet for Cabinet's approval for the documents to be used for the dominant purpose for which they were prepared. The respondent notes that such documents are often government contracts and the like. The dominant purpose for which such a document is prepared is not submission to Cabinet, but rather to make or record an agreement between the government and another party. If the government contract is intended to be submitted to Cabinet for Cabinet's approval for the contract to be used for its dominant purpose, that is making or recording an agreement, then it will be caught by cl 2(1)(c).
In its submissions the respondent refers to Document 1d as "a copy of a document prepared for the purpose of being submitted to Cabinet for Cabinet's approval". The applicant submits that the clause only applies to documents prepared for the purpose of being submitted to Cabinet for Cabinet's approval and not to copies of those documents. The applicant submits that cl 2(1)(c) therefore does not apply.
The applicant appears to have overlooked cl 2(2)(f) which provides that a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e).
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
I am therefore satisfied that DPC has reasonable grounds for its claim that Document 1d contains Cabinet information because Document 1d is a copy of a document prepared for the purpose of being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for it was prepared.
The decision with respect to Document 1d is therefore affirmed and there is no need to consider the applicability of cl 1(g) of the Table to s 14.

[18]

Documents 3, 3a and 3b

Document 3 is a briefing from the Acting Director, Resources and Land Use, DPC to the Premier. Documents 3a and 3b are attachments to that briefing with Document 3a being a draft letter from the Premier to the Minister for Industry and Document 3b being a letter from the Ministry for Industry to the Premier. The evidence of Mr Dowsett is that Documents 3 and 3a disclose the contents of Document 3b, that is the letter to the Premier from the Minister for Industry.
DPC claims that there is an overriding public interest against disclosure of government information contained in Documents 3, 3a and 3b on the basis of Sch 1 cll 2(1)(e) and (f) and cll 1(a) and 1(g) of the Table to s 14.
The respondent relies primarily on its submission that Documents 3, 3a and 3b come within Sch 1 cl 2(1)(e) and notes that, by virtue of cl 2(1)(f), a document that contains extracts from a document caught by cl 2(1)(e) is also a document that contains Cabinet information. The principles in relation to cl 2(1)(e) are set out above in relation to Document 1. The applicant makes the same arguments in relation to these documents as it did in relation to Document 1 concerning Robinson and Cooper. I have not agreed with those arguments and my reasons for doing so are set out above.
[NOT FOR PUBLICATION]
It would appear from the evidence of Mr Dowsett that the subject matter of Document 3b was not in fact deliberated or decided upon by Cabinet. As the Appeal Panel has stated in Transport for NSW & Ors v Robinson, the clause is intended to cover material prepared in advance of a potential Cabinet and is not limited to information actually deliberated upon or which went to Cabinet. In my view, cl 2(1)(e) extends to a position which, in this case, the Minister, at the time, was considering taking to Cabinet even if the position was subsequently not ultimately put before Cabinet.
The Minister for Industry was required to put to Cabinet for its consideration a range of policy options for dealing with EL7223. I am satisfied that the DPC has reasonable grounds for its claim that Document 3b contains Cabinet information because Document 3b is a document prepared before Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that the Minister for Industry was considering taking on a matter in Cabinet. I am also satisfied that Documents 3 and 3a contain Cabinet information because Documents 3 and 3a contain extracts from Document 3b.
This aspect of the DPC decision is also therefore affirmed.

[21]

Legal Professional Privilege

DPC claims that two documents - Documents 19 and 19a - are subject to legal professional privilege. Clause 5 of Schedule 1 to the GIPA Act provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
The Tribunal has considered cl 5 of Schedule 1 in numerous matters. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.
In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the communication or document; and 3. the communication or document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation.
These considerations are embodied within sections 118 and 119 of the Evidence Act 1995.
Mr Holden gave evidence that the Legal Branch within the Department of Industry is responsible for, amongst other things, providing legal advice and services to other areas in the Department. He states that sometimes when the Department is involved in litigation or complex negotiations, the Department instructs external legal advisors, such as the Crown Solicitor, to act on its behalf.
Document 19 is titled "Email thread between Minter Ellison, Baker & McKenzie and Department of Industry". Document 19a is an attachment to Document 19 and is titled "[P]art of draft Deed".
The evidence provided by Mr Holden is that the correspondence is an email from Jacyleen Ong, Senior Principal Legal Officer in the Legal Branch of the Department of Industry to himself and to other officers in the Department of Industry and DPC who were involved in the negotiations with Shenhua. The email forwards earlier correspondence between Mr Holden, Ms Ong, Baker & McKenzie and the Crown Solicitor's Office. His evidence is that the Crown Solicitor was instructed by the Department of Industry to draft certain documents relating to the relinquishment by Shenhua of part of EL7223 and to provide related legal advice and services. Baker & McKenzie were instructed by the Crown Solicitor, on behalf of the Department of Industry, to provide legal advice on an aspect of the matters being negotiated.
Mr Holden states that Document 19 reveals communications: 1. between lawyers employed by Baker & McKenzie and the Crown Solicitor, and himself and Ms Ong, which were for the dominant purpose of the provision of legal advice; and 2. between Ms Ong and other members of the team negotiating with Shenhua, for the dominant purpose of conveying legal advice.
Mr Holden states that Document 19a was prepared by Baker & McKenzie in response to the request for legal advice on an issue which arose in negotiations.
The applicant notes that privilege in relation to these documents is being claimed by DPC, not the Department of Industry to which the legal advice and services were provided. The applicant submits that the privilege is therefore that of the Department of Industry and is not DPC's to claim. Furthermore, the fact that the Department of Industry shared the legal advice it received with DPC indicates that it has waived privilege.
I agree with the submissions of the respondent that the applicant misunderstands the nature of Departments of State such as the Department of Industry and DPC. Departments of State have no legal personality separate from the State of NSW. When a Department of State receives legal advice or professional legal services, it is the State of NSW that is the client and not the individual administrative Department.
As the advice (if it is legal advice) was provided to the State of NSW, the question of waiver does not arise by sharing documents between two parts of the State - the Department of Industry and DPC (see Mann v Carnell (1999) 201 CLR 1). As to the applicant's submission that it is not open to DPC to claim privilege over the documents, the applicant directed its access request to DPC and it is therefore DPC which can claim the privilege on behalf of the State of NSW.
Based on my perusal of the documents over which privilege has been claimed and the evidence provided by the respondent, I am satisfied that Document 19 is confidential communications between a client (the Department of Industry) and lawyers (the Crown Solicitor's Office and Baker & McKenzie) for the dominant purpose of seeking or receiving legal advice. I am also satisfied that Document 19 is confidential communications between a client (officers of the Department of Industry) and lawyers (legal officers of the Department's Legal Branch) for the dominant purpose of the provision of legal advice.
In relation to Document 19a, I am also satisfied that it is a confidential document prepared by a lawyer (Baker & McKenzie) for the dominant purpose of providing legal advice to a client (the Department of Industry).
I am therefore satisfied that the information in Documents 19 and 19a is subject to legal professional privilege. Despite the applicant's suggestions to the contrary, I note that privilege has not been waived. That DPC considered whether privilege should be waived was apparent from the decision.
One further issue to mention is that the applicant notes that the title to Document 19 refers to MinterEllison and that MinterEllison are the solicitors for Shenhua. On this basis the applicant inferred that the documents were sent to MinterEllison and privilege would therefore have been waived. I accept the evidence of the respondent that, despite the title of Document 19, the documents were not sent to MinterEllison or Shenhua and the issue therefore does not arise.
DPC's decision in respect of these documents is affirmed.

[23]

Public interest considerations in favour of disclosure

Section 12 of the GIPA Act sets out the general presumption in favour of disclosure of government information and lists examples of public interest considerations that favour disclosure. The parties agreed that there are several considerations in favour of disclosure: 1. Disclosure of the information could reasonably be expected to promote the discussion of public affairs on an issue of public importance and enhance the Government's accountability; 2. Disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public interest; 3. Disclosure of the information could reasonably be expected to ensure the effective oversight of a resource owned by the State and public finds; 4. Disclosure of the information could reasonably be expected to inform the public about the management of natural resources of significance to the economy and the environment; and 5. Disclosure of the information could reasonably be expected to inform the public about the operation of agencies.
The applicant also drew particular attention to other provisions in the GIPA Act which favour disclosure, for example, ss 5, 9(1), 12(1) and the Note to s 12(2). In addition, the applicant referred to the unique agricultural productivity of the Liverpool Plains region and its importance as a food producing area, the high levels of public interest, including public concern and opposition, in the Watermark Project and the EL7223 buyback along with the economic value of the project and its potential environmental, cultural and social impacts.
In particular, the applicant emphasised that the disclosure of information relating to the EL7223 buyback agreement is important to ensuring effective oversight of public funds and enhancing government accountability.
The applicant drew on evidence provided by its witnesses, Ms Georgina Woods and Mr John Hamparsum, to elaborate upon the impacts of the Watermark Project and to put forward its views on the Government's decision to proceed with the buyback on the terms it did. These matters are of marginal relevance and do not provide additional bases upon which there can be said to be public interest considerations in favour of disclosure.

[24]

"Could reasonably be expected to"

The considerations against disclosure set out in the table to s 14 of the GIPA Act and the examples of considerations in favour of disclosure in s 12 have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

[26]

Documents 17, 18 and 20

DPC submits that access to Documents 17, 18, and 20 should be refused on the basis that disclosure of the information could reasonably be expected to result in the disclosure of information provided in confidence.
In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it".
In the context of cl 1(d) the Tribunal has stated that, in determining the question of whether the information in issue is confidential, a number of principles apply (Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [70]). Those principles are also applicable to cl 1(g) and are as follows: 1. The confidential quality of communications is a question of fact; 2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; 3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; and 4. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
Documents 17, 18 and 20 are each titled "Email thread between Minter Ellison and Department of Industry". The evidence of Mr Holden is that Documents 17, 18 and 20 each contain email correspondence between representatives of the State and Shenhua during their negotiations concerning the EL7223 buyback. His evidence and that of Mr Dowsett is that the negotiations were conducted on a strictly confidential basis. Shenhua has also stated in its submissions as an interested party that information in these documents was prepared and transmitted in confidence.
The respondent acknowledges that some information in the emails might appear to be not especially sensitive, but states that each of the documents in fact concerns significant steps in the negotiation process between the State and Shenhua. The respondent states that disclosure of the information would have serious reputational consequences for the State, particularly with respect to its ability to engage in future negotiations where similar sensitivities regarding confidentiality of information arise.
The applicant casts doubt in its submissions on whether the information was in fact supplied in confidence. Moreover, the applicant submits that, as the key terms of the dealings and negotiations between the Government and Shenhua have been announced publicly, there is very little public interest in maintaining the confidentiality of information concerning those negotiations which were concluded some time ago.
[NOT FOR PUBLICATION]
I accept the evidence that the negotiations between the Government and Shenhua were in fact conducted on a confidential basis and that all parties were aware of the confidential nature of those negotiations. I also accept that the email threads in Documents 17, 18 and 20 were sent during those negotiations and, in part, refer to the subject matter of those negotiations. They do not, as the respondent contends, however, reveal information about significant steps in the negotiation process. The bulk of the information in those emails concerns matters of an administrative nature such as organising a meeting or reviewing documents. That information is not in and of itself confidential even though it was supplied in the context of negotiations which were otherwise confidential.
There is some information in the documents which does concern the substantive subject matter of the negotiations. I am satisfied that that disclosure of that information could reasonably be expected to result in the disclosure of information that was provided in confidence.
I accept that there is a good deal of public interest in the Shenhua buyback and in the management of natural resources more generally in NSW. It is also apparent that significant sums of public money are involved in the arrangements between the State and Shenhua and allowing the public to gain a better understanding of those arrangements would enhance the transparency and accountability of government decision making. On balance, however, I am of the view that these considerations do not outweigh the consideration against disclosure in respect of the information which was provided in confidence.
Shenhua has sought to rely on other matters not raised by DPC including that the documents contain Cabinet information and are subject to legal professional privilege. No evidence has been provided to support these contentions and I find that there is no basis to refuse access to the documents for these reasons.
Shenhua has also submitted that access to Documents 17, 18, and 20 should be refused on the basis that disclosure of the information could reasonably be expected to diminish the commercial value of the information (cl 4(c)) and prejudice Shenhua's legitimate business, commercial, professional or financial interests (cl 4(d)). This argument is dealt with below.
In my view, Documents 17, 18 and 20 should be released with appropriate redactions so that the substantive subject matter of the emails (as outlined in confidential paragraph [131]) is redacted along with personal identifiers.

[27]

Document 18a

DPC submits that access to Document 18a should be refused on the basis that disclosure of the information could reasonably be expected to found an action against the State for breach of confidence and because disclosure could reasonably be expected to result in the disclosure of information provided in confidence. Document 18a is tilted "[D]raft Agreement".
In considering the first limb of cl (1)(g) the Tribunal has referred to Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 where it was held that the words "for an action of breach of confidence" in the Queensland freedom of information legislation should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: 1. a cause of action for breach of an obligation of confidence; 2. a cause of action for breach of a contractual obligation of confidence; 3. a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.
[NOT FOR PUBLICATION]
Mr Holden states that Document 18a reflects marked up amendments and comments made on behalf of both the State and Shenhua. As noted above, both Mr Holden and Mr Dowsett gave evidence, which I accept, that the negotiations between the Government and Shenhua were conducted under conditions of strict confidentiality. I do not consider that the fact that aspects of the outcome of those negotiations have been made public or that the negotiations occurred some time ago detracts from the confidential nature of those negotiations themselves.
It is clear that the information in Document 18a was received and developed through negotiations in a confidential context. Having examined the confidential material, including in particular the terms of the agreement, it appears that disclosure of the information could reasonably be expected to found an action for breach of confidence by Shenhua against the respondent. The applicant states that Shenhua would be highly unlikely to commence such an action if Document 18a were disclosed. The Tribunal is not required to assess the likelihood of any such action being commenced. The issue is whether disclosure could reasonably be expected to provide an entity with an action for breach of confidence, not whether it is likely or unlikely the entity would in fact commence such an action.
Taking into account the public interest considerations in favour of disclosure as outlined above, I am of the view that, on balance, these considerations do not outweigh the consideration against disclosure in respect of the information in Document 18a. That aspect of the decision is also affirmed.

[30]

Document 6

Document 6 is a "Renewal Justification Statement" dated September 2016 in which Shenhua sought to renew EL7223 under the Mining Act 1992. The document was released to the applicant in a redacted form. The applicant argues that the whole document should be released.
The applicant submits that no evidence has been provided to the Tribunal of the commercial value to Shenhua of the information withheld or of any "competitive edge" that information provides Shenhua. The applicant submits that, based upon the evidence provided by Ms Woods, Shenhua has no competitors in the region of the Watermark Project and the Government has announced that no other mining operations will be permitted in the Liverpool Plains region. Accordingly, release of the information could not disadvantage or prejudice Shenhua in any relevant way, nor could it provide any other party with a competitive edge.
The applicant also queries whether any competitive commercial value in the information now exists, given Document 6 was submitted in 2016. The applicant makes similar arguments in relation to whether release of the information would, more generally, prejudice Shenhua's business or commercial interests.
For its part, Shenhua submits that those parts of the document which have not been released contain commercially sensitive information about Shenhua's exploration activities, business decisions and company expenditure. Shenhua states the information has significant commercial value which would be significantly diminished if revealed to the public.
Having perused the unredacted document, I am satisfied that the information which has not been released relates to the legitimate business interests of Shenhua and has competitive commercial value. The information contains details of specific work activities of Shenhua, financial and other details, compliance and reporting requirements and other information relevant to how Shenhua conducts its business activities.
I am satisfied that the value of the information has not necessarily, as the applicant submits, diminished with the effluxion of time. It is also information which, if released, a competitor in the sector (and not just in relation to the Liverpool Plains region) could use to their advantage thereby diminishing the competitive commercial value of the information to Shenhua. Similarly, I am satisfied that the release of commercially sensitive information contained in the document could be used by competitors to implement similar strategies and processes, thus adversely affecting Shenhua's profits or gains.
I am therefore satisfied that disclosure of the information in Document 6 could diminish the competitive commercial value of the information to Shenhua and could also prejudice Shenhua's legitimate business and commercial interests. This is a matter to be given significant weight.
I am of the view that, on balance, the public interest considerations in favour of disclosure as previously set out do not outweigh the consideration against disclosure in respect of the information in Document 6. That aspect of the decision is also affirmed.

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Parties

Cases Cited (9)

Cited By (20)