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[2026] NSWCATAP 325
NCAT Appeal Panel
2026-10-20
Seiden SC DCJ, Deputy President J Redfern PSM, Senior Member
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mason v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Mason [2026] NSWCATAP 325
Hearing dates: 5 June 2026
Date of orders: 20 October 2026
Decision date: 20 October 2026
Jurisdiction: Appeal Panel
Before: Seiden SC DCJ, Deputy President
J Redfern PSM, Senior Member
Decision: Appeal 2026/00060289:
(1) Leave to appeal is granted on grounds 5, 6, 7 and 10 and, to the extent necessary, on grounds 4, 8 and 9.
(2) The appeal is allowed.
(3) The orders made by the Tribunal on 16 January 2026 are set aside.
(4) The case is remitted for reconsideration by a differently constituted Tribunal.
(5) If a party to the appeal wishes to make an application for costs, the following directions apply:
(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Appeal Registry any submissions and documents the costs applicant intends to rely on in relation to the application;
(b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Appeal Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;
(c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Appeal Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent’s submissions and documents;
(d) the parties are to include, in their written submissions concerning the application for costs, their views about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).
Appeal 2026/00083846:
(1) Leave to appeal on Grounds 1 and 2 is granted.
(2) The appeal is allowed in part.
(3) Order 1 of the orders made by the Tribunal on 20 February 2026 is set aside.
(4) The interim confidentiality orders made on 2 March 2026 are to continue, pending the Appeal Panel’s determination of the appropriate form of confidentiality orders.
(5) Within 14 days after the publication of this decision, each party is to give the other party and the Appeal Registry a form of order regarding appropriate confidentiality orders in accordance with these reasons and any supporting written submissions.
(6) If a party to the appeal wishes to make an application for costs, the following directions apply:
(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Appeal Registry any submissions and documents the costs applicant intends to rely on in relation to the application;
(b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Appeal Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;
(c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Appeal Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent’s submissions and documents;
(d) the parties are to include, in their written submissions concerning the application for costs, their views about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).
General information, not legal advice.
Original judgment source is linked above.
Catchwords: APPEAL – Administrative law – Access to information – Confidential hearing – Construction and application of s 107 of the Government Information (Public Access) Act 2009 (NSW) – Whether the Tribunal denied the appellant procedural fairness by excluding the appellant’s legal representative from a confidential hearing – Whether s 107 authorises the withholding of an agency’s reliance on a consideration against disclosure from an access applicant
APPEAL – Administrative law – Access to information – Secrecy provision in cl 6 in the table to s 14(2) of the Government Information (Public Access) Act 2009 (NSW) – Interpretation of s 257 of the Crimes (Administration of Sentences) Act 1999 (NSW) – Meaning of disclosure
APPEAL – Administrative law – Access to information – Refusal of confidentiality orders by Tribunal at first instance – Whether first instance decision included information for which there was an overriding public interest against disclosure
Legislation Cited: Administrative Appeals Tribunal Act 1976 (Cth)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Criminal Records Act 1991 (NSW)
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989 (NSW) (repealed)
Government Information (Public Access) Act 2009 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited: Amos v Western NSW Local Health District [2017] NSWCATAD 176
Antoun v The Queen [2006] HCA 2;(2006) 80 ALJR 497(2006) 80 ALJR 497
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103
Bachelard v Australian Federal Police (2025) 308 FCR 1; [2025] FCAFC 5
Black v Hunter New England Local Health District [2011] NSWADT 295
Brazel v Sydney Water Corporation [2021] NSWCATAP 13
Brazel v Sydney Water Corporation [2026] NSWCATAP 9
Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54
Collins v Urban [2014] NSWCATAP 17
Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68
Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59
Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
Foster v Federal Commissioner of Taxation (1951) 82 CLR 606; [1951] HCA 18
Health Care Complaints Commission v Kirby [2026] NSWCA 168
House v The King (1936) 55 CLR 499
Hutchinson v Roads and Traffic Authority, NSW [2006] NSWADT 147
Insurance and Care NSW v FMM [2024] NSWCATAP 43
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Jamieson v Department of Justice [2019] NSWCATAD 173
Karnauchow v Commissioner of Corrective Services [2026] NSWSC 968
Kessing v The Queen (2008) 73 NSWLR 22; [2008] NSWCCA 310
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 5312; [2010] HCA 1
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Mason v Department of Communities and Justice [2026] NSWCATAD 1
Mason v Secretary, Department of Communities and Justice (No. 2) [2026] NSWCATAD 56
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 31
Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41
O’Sullivan v Commissioner of Police, NSW Police Force [2026] NSWCATAD 2
Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206
Place v Department of Finance, Services and Innovation (No. 2) [2017] NSWCATAD 21
R v Ritson; R v Stacey [2010] NSWDC 160
Re Dunn and Department of Defence [2004] AATA 1040
Schwartz v Health Care Complaints Commission [2026] NSWCA 162
Sheehy v Commissioner of Police [2018] NSWCATAD 73
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Sunshine Loans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Thomson v Commissioner of Police [2021] NSWCATAD 53
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Webb v Secretary, Department of Communities and Justice [2023] NSWCATAP 213
Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2026] NSWCATAP 210
Woolley v Lismore City Council [2013] NSWADT 10
Texts Cited: Explanatory Note, Government Information (Public Access) Bill 2009
Category: Principal judgment
Parties: Appeal 2026/00060289:
Max Mason (Appellant)
Secretary, Department of Communities and Justice (Respondent)
Appeal 2026/00083846:
Secretary, Department of Communities and Justice (Appellant)
Max Mason (Respondent)
Representation: Appeal 2026/00060289:
Counsel:
A Bell (Appellant)
Solicitors:
Banki Haddock Fiora (Appellant)
Department of Communities and Justice (Respondent)
Appeal 2026/00083846:
Counsel:
A Bell (Respondent)
Solicitors:
Department of Communities and Justice (Appellant)
Banki Haddock Fiora (Respondent)
File Number(s): 2026/00060289
2026/00083846
Publication restriction: Pending further order, the publication of the content of paragraphs 150 and 158 of the decision of the Tribunal in proceedings 2025/00275594 delivered on 16 January 2026 is prohibited. This order is made under section 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013.
“I am seeking information relating to, including reasons for, the July 2007 banning of lawyer Zena Nasser from any prison in New South Wales for up to 2 years.”
The access application was denied by the respondent on the grounds that, to the extent there were any records falling within the scope of the access application, there was an overriding public interest against disclosure (the disputed information). At first instance, the Tribunal upheld that decision: Mason v Department of Communities and Justice [2026] NSWCATAD 1 (the first Decision or the published decision).
Max Mason, who we refer to as the appellant or confidentiality**-respondent**, appeals against the first Decision (the a****ccess a****ppeal).
After the first Decision was published, the Secretary, Department of Communities and Justice, who we refer to as the Secretary, applied to make additional confidentiality orders. That application was refused: Mason v Secretary, Department of Communities and Justice (No. 2) [2026] NSWCATAD 56 (the second Decision). The respondent appeals the second Decision (the c****onfidentiality a****ppeal).
These reasons for decision concern both the access appeal and the confidentiality appeal, which were heard together.
With respect to the access appeal, a primary issue was whether, notwithstanding s 107 of the Act, the Tribunal denied the appellant procedural fairness by refusing to admit his legal representatives into a part of the hearing and in failing to notify the appellant or their legal representatives of a public interest consideration relied on by the Secretary and by the Tribunal, in refusing the appellant access to the disputed information.
Broadly, in determining this primary issue, we found as follows:
That s 107(3) of the Act permits (in appropriate cases), on the application of the relevant agency, a hearing in the absence not only of the public and the access applicant, but also of the applicant’s legal representative; even if the legal representative undertakes not to disclose information to the access applicant or another person. In so finding, we rejected the appellant’s contention that s 107(3) of the Act is concerned to avoid disclosure to the public and the access applicant, but not the legal representative, as was held to be the case under the precursor statutory provision.
However, before the Tribunal receives evidence and hears argument in the absence of each of the public, an access applicant and their legal representative, the Tribunal must form the opinion (in relation to each of the persons mentioned) that it is necessary to do so to prevent the disclosure of certain information.
The information that must not be disclosed is “government information” as that term is defined in the Act, which, in effect, is as follows: information contained in any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means, held by an agency.
The claim by an agency, referred to in s 107(3) of the Act, relates to the government information that was the subject of the access application (which we refer to as the primary records): here, the disputed information. A claim, as referred to in s 107(3) of the Act, cannot be made in relation to derivative material, such as submissions per se. However, as disclosure of derivative material may disclose the government information in the primary records, over which there is a claim, the Tribunal must consider whether to receive the derivative material in the absence of the public, the access applicant and their legal representative to avoid disclosure of the government information in primary records (i.e., the disputed information).
Further, we found that the expression “is” in the context of whether the disputed information is government information for which there “is” an overriding public interest against disclosure, is to be construed as referring to “an ongoing state”. There always “is” (or is not) an overriding public interest against disclosure of the information. A purpose of the administrative review proceeding is for the Tribunal to determine the enduring position. In this regard, the expression “is” in subss 107(3) and (2), used in the similar context, has the same meaning.
Also, in relation to this primary issue, we noted that under each of subss 107(3) and (2) the Tribunal is forming its opinion at an early stage, before hearing all the evidence and submissions. Therefore, it is appropriate for a Tribunal to take a pre-emptive or defensive approach. However, if it turns out that this approach was unwarranted, further disclosures may be made as the hearing progresses, if necessary.
Ultimately, we found there to have been a material breach of procedural fairness in withholding the Secretary’s and the Tribunal’s reliance on a public interest consideration that tended against disclosure from the appellant’s legal representative, because that consideration did not disclose the disputed information.
Another aspect of the access appeal concerned whether the Tribunal erred in concluding that the agency had not lawfully disclosed the disputed information, years before the access application was made. We found error in the Tribunal’s approach, stemming from a misconception that s 257 of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act), which was the provision under which lawful disclosure would have been made had the agency indeed disclosed the material years ago, had not been enacted at the relevant time. This affected several of the grounds of appeal. In considering these grounds, we considered what it means to “disclose” something, in relation to various public interest considerations tending against disclosure under the Act. We also considered disclosure for the purposes of s 257 of the CAS Act:
Under the Act, we found that the expressions “disclose” and “reveal” are each defined terms, which can work together. For the purposes of cl 3(a) of the table to s 14(2) of the Act (the Table) there is a public interest consideration against making information available if to do so could reasonably be expected to make personal information available that has not already been lawfully publicly disclosed.
For the purposes of the CAS Act, the general notion of disclosure applies.
Generally, to disclose something is to make it known. However, verifying or confirming a matter that is the subject of belief or speculation can operate as a disclosure.
In relation to the confidentiality appeal, we accepted, largely, the Secretary’s contention that two paragraphs of the first Decision disclosed the disputed information itself, contrary to the orders in the first Decision, which reflected that there was an overriding public interest against disclosure of the disputed information.
The foregoing is but a brief abstract, for context. Our reasons for deciding to allow both appeals follow.
In the first Decision, the questions before the Tribunal were whether the Secretary conducted reasonable searches for the disputed information and whether the appellant should be provided with access to the disputed information that was identified as being held by the respondent.
During the first instance proceedings, the Tribunal received evidence and heard argument in a closed hearing, ostensibly in accordance with s 107(3)(b) of the Act (the confidential hearing). Notwithstanding the appellant’s submissions that the presence of his legal representatives at the confidential hearing would be procedurally fair, and still in accordance with s 107 of the Act, the Tribunal excluded the legal representatives from attending the confidential hearing. The Tribunal also excluded the appellant and the public. Further, some materials which were relied on by the respondent were not provided to the appellant or his legal representatives (the confidential material).
The Tribunal concluded that the respondent had discharged his onus under s 53 of the Act, and whilst satisfied that the public interest considerations in favour of disclosure should be given substantial weight, determined that the balance of the public interest lies against the disclosure of the government information.
In relation to the public interest considerations against disclosure, the Tribunal afforded “significant weight” to the factors said to fall within the Table, as follows:
Clause 3(a) – reveal an individual’s personal information.
Clause 3(b) – contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).
Clause 4(d) – prejudice any person’s legitimate business, commercial, professional or financial interests.
The Tribunal also afforded “some weight” to factors said to fall within clause 6 of the Table, on the basis that disclosure could reasonably be expected to constitute a contravention of “any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information” (a secrecy provision).
The Tribunal affirmed the respondent’s decision.
As mentioned, in the first Decision, the Tribunal held the confidential hearing. Further, when publishing the first Decision, the Tribunal made an order, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) restricting the publication or disclosure of documents lodged by the respondent with the Tribunal on a confidential basis and the parts of the first Decision marked “NOT FOR PUBLICATION”, other than to the respondent. An “open” decision was published to both parties and to NSW Caselaw (i.e., the published decision). A version of the first Decision which included reference to the confidential material was provided to the Secretary only (the confidential reasons).
The Secretary lodged an application for miscellaneous matters, contending that there is “an inadvertent but obvious error” in the first Decision due to an “inconsistency between the reasons for decision, the orders made and the inclusion of the confidential reasons in the published decision.” The Secretary contended that the confidential reasons have “clearly been inadvertently disclosed” in the published decision instead of being marked “Not for Publication”.
The Tribunal rejected that application, essentially because either the published decision did not disclose confidential information or the reasons were required to be published to comply with s 62 of the NCAT Act, which prescribes the matters to be included in a written statement of reasons.
An appeal may be brought, under s 80 of the NCAT Act, in respect of an interlocutory decision, with leave; and with respect to any other type of decision, on a question of law, or with leave on any other grounds.
Where an appeal is brought on a question of law, the following principles are apposite:
A question of law must be solely a question of law and does not extend to a mixed question of fact and law: Schwartz v Health Care Complaints Commission [2026] NSWCA 162 at [65].
The question of law must be articulated with precision, as it is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22].
It should be possible to discern the question of law from the notice of appeal: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71].
Further, the question of law must arise “on” the appeal and must not be arid: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25(10)] and the cases cited therein.
In order to obtain leave, it is generally necessary to identify some point of principle or question of public importance, or an unorthodox approach to the fact finding, a finding that was unreasonably arrived at, or a clear injustice: Collins v Urban [2014] NSWCATAP 17 (Collins v Urban) at [82]-[84].
With respect to an interlocutory decision, leave is required to appeal even if a question of law is raised. The principles for leave to appeal an interlocutory decision were set out in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]:
“(1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39;
(2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ;
(3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564;
(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative;
(5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323;
(6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6;
(7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec);
(8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9;
(9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.”
“(a) Permitting the respondent to refuse to inform the appellant of a consideration against disclosure relied upon in the proceedings, being s 14 cl 4(d) of the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”) (at [19]).
(b) Holding that cl 4(d) applies, and placing substantial weight on it, where the appellant was denied the opportunity to be heard on that issue (at [161]).”
At first instance, the appellant opposed the exclusion of his legal representatives from the confidential hearing and submitted that, as he is represented by independent counsel, their exclusion would be procedurally unfair, notwithstanding s 107 of the Act. Nevertheless, the Tribunal proceeded as outlined above. Once the first Decision was published, the appellant learned that the respondent had relied on cl 4(d) of the Table.
There is no dispute that the starting position is that the Tribunal must accord procedural fairness: NCAT Act, s 38(1), (2), (5)(c). Further, there is no dispute that s 107 of the Act lawfully affects the content of the duty to accord procedural fairness. Parliament, by enacting s 107, authorised the Tribunal to depart from the ordinary position that parties may expect to receive all the material on which the decision-maker will make their decision. That departure is a necessary feature of the Act, to preserve the overriding public interest against disclosure: Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2026] NSWCATAP 210 at [129].
Ground 1 contends that notwithstanding s 107 of the Act, a material breach of procedural fairness was occasioned by excluding the appellant’s legal representatives from the confidential hearing and by failing to inform the appellant or his legal representatives of a consideration against disclosure relied upon in the proceedings (i.e., clause 4(d)), to which “substantial weight” was given by the Tribunal in determining the access application. A material breach of procedural fairness raises question of law: Brazel v Sydney Water Corporation [2026] NSWCATAP 9 (Brazel) at [87].
The respondent accepts that Ground 1 raises a question of law. Nevertheless, the respondent submits that there was no breach of procedural fairness, as the exclusions were mandated by s 107 of the Act. The respondent also submits that if there was a breach, it was not material.
As the question is whether there was a material breach of procedural fairness, we too are satisfied that this raises a question of law.
We are also satisfied that, even though it concerns the interlocutory decision of the Tribunal to exclude the applicant’s representative from the hearing and to withhold some materials, as Ground 1 is being heard as part of the appeal against the first Decision (the substantive decision) and it raises a question of law, leave to appeal is not required. However, if leave to appeal were required, as the ground raises an important point of principle concerning the operation of s 107(3) of the Act and there is no risk of fragmenting the proceedings, leave to appeal would be granted.
There is no dispute that the appellant was not informed of the respondent’s reliance on clause 4(d). Generally, the hearing rule requires that a party be apprised of the issues in dispute and be given an opportunity to make submissions: Kioa v West (1985) 159 CLR 550 at 622, 628; [1985] HCA 81; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [15]-[16]. However, s 107 affects the content of the duty of procedural fairness in proceedings under the Act.
The first issue to determine is whether s 107 authorised the Tribunal to conduct the confidential hearing in the absence of the appellant’s representative and withhold disclosure of the respondent’s reliance on clause 4(d).
The second issue for determination is whether, if the Tribunal’s approach amounted to a breach of procedural fairness, the breach was material.
Before turning to these questions, it is necessary to reflect on the construction of s 107.
107 Procedure for dealing with public interest considerations
(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—
(a) the public and the applicant, and
(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
At the first instance hearing, the respondent applied, under s 107(3) of the Act, for the Tribunal to receive evidence and hear argument in the absence of the public, the appellant and the appellant’s legal representatives. The basis for that application was that the disputed information is subject to “a claim” of an overriding public interest against disclosure.
The Tribunal stated at [19] of the first Decision:
“After hearing the parties’ submissions, the Tribunal determined that s 107 of the GIPA Act requires it to consider and receive[…] evidence over which there is a claim of an overriding public interest against disclosure in the absence of the applicant and his legal representatives.”
Under Ground 1, the appellant makes two major points:
First, that s 107(3)(b) did not authorise the Tribunal to shut out the appellant’s legal representatives from the confidential hearing.
Second, at a minimum, the appellant was entitled to notice of the issues in the proceedings which includes the grounds relied upon; and nothing in s 107(3) of the Act overrides that. The appellant was, therefore, entitled to due notice that the respondent relied on clause 4(d).
The appellant’s first point is that the appellant’s representative should be treated differently from the appellant and the public. In particular, this is because allowing the applicant’s representative into a confidential hearing strikes a balance between granting a requisite level of procedural fairness and preventing disclosure of government information over which there is an overriding public interest against disclosure.
It is necessary to consider the text of s 107, in light of its context and purpose.
“Clause 107 provides that the [Administrative Decisions Tribunal] must not disclose any information for which there is an overriding public interest against disclosure and must conduct ADT reviews in private if necessary to prevent disclosure of such information.”
The appellant sought to draw significant support from the Freedom of Information Act 1982 (Cth) (Cth FOI Act). However, the respondent submits that we should not rely on the Cth FOI Act to construe s 107(3) of the GIPA Act, and, in particular, the case relied upon by the appellant, Bachelard v Australian Federal Police (2025) 308 FCR 1; [2025] FCAFC 5 (Bachelard) has “extremely limited relevance to the task of interpreting s 107(3) of the GIPA Act due to the significant difference” between the Cth FOI Act, which was considered in Bachelard, and the Act.
Section 63 of the Cth FOI Act provides as follows:
63 Tribunal to ensure non**‑**disclosure of certain matters
(1) In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 69(3) or 70(1) or (2) of the Administrative Review Tribunal Act 2024, the Tribunal must have regard to:
(a) the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and
(b) the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1).
(2) Notwithstanding anything contained in the Administrative Review Tribunal Act 2024:
(a) the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in paragraph (1)(a) or (b); and
(b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a) or (b).
The Cth FOI Act may be distinguished from the Act on the grounds that s 63 expressly refers to preventing disclosure to the applicant as opposed to the applicant’s representative, and because of the other textual and contextual differences. As the respondent notes, one principal difference is that the Cth FOI Act “defers” to the confidentiality procedure in the Administrative Appeals Tribunal Act 1976 (Cth), which applies a test where procedural fairness must explicitly be balanced, whereas the Act explicitly overrides the NCAT Act including its procedural fairness provisions.
As put by the respondent:
“Rather than deferring to the confidentiality procedure under s 64 of the NCAT Act, s 107(3) creates a new and bespoke procedure for GIPA administrative review proceedings, where the test is stated as ‘necessary’”.
The structure of s 107(3) can be traced back to its historical roots. The historical position of s 107 was described in Black v Hunter New England Local Health District [2011] NSWADT 295 (Black) at [24]-[26]. In Black, it was identified that the language of 107(3) is reminiscent of s 57(2) of the now repealed Freedom of Information Act 1989 (NSW) (the NSW FOI Act).
Section 57 of the NSW FOI Act provided as follows:
57 Consideration of restricted documents
(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.
(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:
(a) the public, and
(b) the review applicant, and
(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant’s representative.
Section 57 was concerned with “restricted documents” (which were not the subject of a Ministerial certificate, under s 59 of the NSW FOI Act). Restricted documents were those named in Part 1 of Sch 1 and included Cabinet documents, Executive Council documents and documents affecting law enforcement and public safety (NSW FOI Act, s 6). The opinion in s 57(2)(c) was concerned with disclosure of “exempt matter”, which was “matter by virtue of which a document is an exempt document” (NSW FOI Act, s 6). The expression “exempt document” referred to a broader range of documents than the expression “restricted document”. Exempt documents meant the types of documents named in Schedule 1 – which included not only restricted documents in Part 1, but a range of other documents in Parts 2 and 3 such as those affecting personal or business affairs and documents subject to legal professional privilege – in addition to documents relating to functions of a body or office that was exempt by operation of s 9 and Sch 2 of the NSW FOI Act, such as the office of Director of Public Prosecutions.
What is discernible is that, under the NSW FOI Act, in relation to restricted documents, the Tribunal was to receive evidence and hear argument in the absence of the public and the review applicant, based alone on an application of the Minister administering the Act or the relevant agency. On its face, it was not necessary for the Tribunal to form any opinion about the necessity to exclude the applicant or the public. However, when considering whether to exclude the review applicant’s representative, even on the Minister’s or the agency’s application, the Tribunal was required to first form an opinion – i.e., the opinion that it was necessary to exclude the review applicant’s representative to prevent the disclosure of any exempt matter.
In Hutchinson v Roads and Traffic Authority, NSW [2006] NSWADT 147 (Hutchinson), the Administrative Decisions Tribunal (ADT) found this to be the position. There, the ADT said at [6]-[7]:
“6 Pursuant to s 57(2), the RTA applied to the Tribunal to receive certain evidence and hear argument in relation to it, in the absence of the public, Mr Hutchinson and Mr Hutchinson’s legal representative, Mr Zipser. When such an application is made, the Tribunal is bound, by the provisions of s 57(2), to receive evidence and hear argument in the absence of the public and the review applicant. The Tribunal has a discretion to exclude the applicant’s representative, if in the opinion of the Tribunal, it is necessary to do so to prevent the disclosure of any exempt matter. In my view, it was not necessary in this case to exclude Mr Zipser from seeing or hearing confidential evidence, because I was satisfied that if I imposed certain conditions on his participation, exempt matter would not be disclosed, except to him.
7 The conditions on which I allowed Mr Zipser to participate in that part of the proceedings where confidential evidence was given and confidential submissions made, were that the material was to be viewed only in the Tribunal hearing room, that the material was to be used solely for the purpose of these proceedings and that Mr Zipser give an undertaking to the Tribunal that he would not disclose the material or communicate the content of the material, or any of the oral evidence or submissions relating to that material, to any person, including Mr Hutchinson. That undertaking does not apply to communication of the material or its content to the Tribunal or representatives of the RTA within the hearing room. Mr Zipser gave that undertaking to the Tribunal.”
(Emphasis added)
In addition to expressly saying that the Tribunal had a discretion when it came to excluding the applicant’s representative from a confidential hearing, the ADT in Hutchinson implicitly found that the reference to disclosure of exempt matter in s 57(2)(c) was a reference to disclosure to someone other than the review applicant’s representative. This follows from the emphasised words at [6], as set out above. It also follows from the nature of the conditions imposed, in that case, that the representative was required to enter into an undertaking not to disclose the material to the applicant. By allowing the representative into the hearing and providing them with the confidential evidence, it can be inferred that the Tribunal considered that disclosure of the material to the representative was not contrary to s 57(2)(c). The Tribunal’s opinion – namely, that it was not necessary to exclude the representative to prevent disclosure of exempt matter – was based on satisfaction that the representative would not disclose the exempt matter to the applicant or the public.
This decision indicates that under s 57(2)(c) of the NSW FOI Act, the starting position was that the representative could be allowed into an otherwise confidential hearing, unless the Tribunal formed the opinion that it was necessary to exclude them to prevent disclosure of the exempt matter to the applicant or the public.
Nevertheless, due to the differing context, structure and language of that provision, it is necessary to use caution when applying principles developed in relation to s 57 of the NSW FOI Act to the position under s 107 of the Act.
First, it is apparent that the structure of s 107(3)(b) of the Act is different to that of s 57(2)(c). In s 107(3), the positioning of the words that speak of an opinion being formed is at the end of paragraph (b). The reference to the opinion appears after references to each of the applicant, the public and the representative, rather than immediately before the reference to the applicant’s representative. Accordingly, it is now less clear that the opinion referred to in s 107(3)(b) is solely referable to an applicant’s representative. The textual indication which could be relied upon in Hutchinson, which pointed to the ADT having a discretion in the case of a representative but not in the case of the applicant or the public, is less obvious now.
Also, whilst the opinion in s 57(2)(c) concerned “exempt matter”, an application under s 57 of the NSW FOI Act could only be made with respect to “restricted documents”. As noted above, restricted documents covered a narrower category of documents than exempt documents. A broad analogy can be drawn between restricted documents under the NSW FOI Act and information for which there is a conclusive presumption that there is an overriding public interest against disclosure under the Act. Under the Act, s 107(3) is not limited to information for which there is a conclusive presumption against disclosure. Further, there is nothing in the Act that limits the cases under which the Minister or agency can make an application under s 107(3). Therefore, s 107(3) of the Act applies to a broader range of circumstances than those covered by s 57(2) of the NSW FOI Act.
Under the NSW FOI Act, the equivalent of s 107(1) and (2) was found in s 55 (and not s 57). Section 55 provided as follows:
55 Procedure for dealing with exempt matter
In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.
By, in one sense, merging the concepts in ss 55 and 57 of the NSW FOI Act into s 107, the Act has opened up the range of circumstances where an application by the Minister or an agency may be made.
In Black, the ADT considered s 107(3) of the Act and concluded that the opinion is required to be formed, irrespective of whether one is considering the position of the public, the review applicant, or the review applicant’s representative (at [37]).
In Black, the ADT said at [36]-[37]:
“36 In my view, the qualifying words after the words ‘“applicant’s representative’”, in paragraph 107(3)(b), equally apply to paragraph 107(3)(a).
37 However, I agree with the contentions of the [the respondent agency] that subsection 107(3) is mandatory in operation in that where the Tribunal forms the opinion as prescribed in that subsection it must receive the evidence and hear argument the subject of the agency’s application in the absence of the public, the applicant and the applicant’s representative.”
Whilst we note that Black did not refer to Hutchinson, the difference in position between whether the Tribunal must, on the mere application of the Minister or agency, exclude the public and the applicant from the hearing, is explicable on the ground that the text of s 107 is different because the reference to the opinion comes after, rather than before, the reference to the representative and also because s 107(3) has a greater reach than s 57(2)(c) had.
Here, the appellant takes the position applicable under Hutchinson: that the applicant is “automatically” excluded. However, the respondent accepts the position in Black, that the Tribunal must form the opinion in relation to each of the public, the applicant and the applicant’s representative. The respondent points to the “absurd” position that would obtain if by mere application the agency could exclude an access applicant and the public, in respect of all categories of information.
Black has been cited several times by the Tribunal, with apparent approval: Brazel v Sydney Water Corporation [2021] NSWCATAP 13 at [54]; Sheehy v Commissioner of Police [2018] NSWCATAD 73 (Sheehy); Amos v Western NSW Local Health District [2017] NSWCATAD 176 at [17]. In Sheehy, the Tribunal rejected the submission that the applicant’s representative should be allowed into the confidential hearing, following Black. The exclusion of the applicant’s representative was expressly said to be necessary “to prevent the disclosure of information for which there is claimed to be an overriding public interest against disclosure” (at [32]).
Nevertheless, the point raised at [36] in Black has not attracted further, express consideration.
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.
Schedule 1 to the Act includes information such as Cabinet information or information that would be privileged from production in legal proceedings on the ground of client legal privilege. Where a conclusive presumption is relied upon, the Tribunal need only consider whether the information satisfies that description: Patrick v Secretary, Department of Communities and Justice [2025] NSWCATAP 206 at [46].
When a conclusive presumption does not apply, s 13 of the Act operates to provide a balancing test. Section 13 provides:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The Tribunal, in determining under s 13 whether there is an overriding public interest against disclosure, performs an evaluative exercise: Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [131].
In both cases, the Tribunal performs a fact-finding exercise, in order to discover whether the information the subject of the access application is or is not information for which there “is” an overriding public interest against disclosure. The legal character of that information never changes: there always “is” or “is not” an overriding public interest against disclosure of the government information. The Tribunal’s role is to discern the correct position and announce that when it makes its decision. The Tribunal does not exercise a discretion when so doing. At that time, the Tribunal discerns an ongoing state of affairs.
As noted recently by Leeming JA in Health Care Complaints Commission v Kirby [2026] NSWCA 168 at [100] - [102]:
“Little assistance is given in answering that question from the text of s 165B(2). The words ‘is to be constituted’ are capable without undue strain of referring either to the point of time when the Tribunal is first constituted, or to the constitution of the Tribunal throughout the duration of the inquiry. Any reader of chapter 4 of R Quirk et al, A Comprehensive Grammar of English Usage (Longman, 1985) ‘The semantics of the verb phrase’ will rapidly realise just how complex the word ‘is’ is (some of the examples include ‘Margaret is tall’, ‘Tomorrow is Tuesday’ and ‘Brahms is the last great representative of German classicism’). Ordinarily the grammatical ambiguity flowing from the multiple ways in which the present tense may be deployed is readily resolved by recourse to semantics, and in the examples given in that work, the sentences mentioning Brahms and Tuesday refer to the past and the future, while that mentioning Margaret refers to the present as an ongoing state. The ongoing or continuous present is in further contradistinction with the instantaneous present, such as ‘I enclose (herewith) a form of application’ or ‘I resign’ (examples also given in that work), which refer to specific acts with limited duration.
These complexities have long been known to lawyers as well as grammarians. This point was well made by Griffiths AJA in Christian Community Ministries Ltd v Minister for Education and Early Learning [2024] NSWCA 1 at [58] by reference to what had been said by Young J in Gaffey v Chief Commissioner of State Revenue [2000] NSWSC 403 at [12]:
The word “is” in its most common use indicates an immediately present situation: Public Trustee v McKay [1969] NZLR 995, 1001. However, as McCarthy J pointed out in that case at 1002, the use of the present tense does not necessarily focus on a point in time because it is quite customary to use the present tense as though the past, and indeed the future, were present such as “the steamer leaves every Tuesday in winter”. The word “is” is also often used in a continuous sense, such as “where the court is satisfied” of something, referred to as the “continuous present” by Gee J in Penza v Penza [1998] FLC 91-949 at 76,858. Occasionally the word can have a past significance such as in Hargreaves v Hopper (1875) 1 CPD 195, where the Act gave the vote to a person who “is on the last day of July in any year” a person who possesses the prescribed qualifications. The word can mean “shall be” or “will be”: Botts v Simpson 167 P (2d) 231, 233 (1946) (Cal); Jersey City v Flynn 70 A 497, 510 (1908) (NJ Chancery). Sometimes the word has no temporal significance at all: Pye v Minister for Lands NSW [1954] 1 WLR 1410, 1425. See generally Darkingung Local Aboriginal Land Council v Minister for Natural Resources (1985) 58 LGRA 298.
As Young J observed, in all cases it is a matter of looking at the word in context. Sometimes the sense will make it clear that the words must connote a single point in time. For example, various rules of court require that ‘notice is to be given’, including UCPR r 35.2(2) concerning a notice to attend for cross-examination, which ‘is to be given a reasonable time’ in advance. Because the notice is the consequence of the party’s election to cross-examine, the sense of the rule is that the requirement of notice must only be satisfied once. Alternatively, sometimes it will be clear that the condition must be satisfied throughout the period. Gummow J pointed out one example where a power was conditioned upon satisfaction that a prisoner who was to be detained “is a serious danger to the community” in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 at [112].”
First, we turn to s 107(1).
Whilst s 107(1) commences with the words “in determining” and therefore apprehends a time before a decision is made, it is primarily concerned with the position after hearing, and more particularly once the Tribunal has made a decision and it has been discerned that there is an overriding public interest against disclosure in relation to at least some of the information. It is concerned with “reasons for decision” or “otherwise”. The reference to “otherwise” anticipates orders and other forms of disclosure. This view is supported by the historical position. Section 107(1) is akin to s 55(a) of the NSW FOI Act, where the words “in determining” in the chapeau covered both paragraph (a) (the reasons for decision or otherwise) and paragraph (b) (the receipt of evidence and argument).
Next, we turn to s 107(2).
Under s 107(2), the Tribunal “must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure” (emphasis added). Whilst the subsection refers to preventing disclosure when there “is” an overriding public interest against disclosure, we do not consider that s 107(2) is limited in time to the period after the Tribunal has made a decision. Subsection 107(2) concerns a point in time when the Tribunal is yet to receive evidence and hear argument. Further, we are satisfied (as discussed above) that the word “is” in s 107(2) refers to an ongoing state.
Accordingly, s 107(2) is engaged at a time when the Tribunal has not decided, or at least not decided finally, whether there is or is not an overriding public interest against disclosure of the information. This is akin to s 55(b) of the NSW FOI Act.
For the reason that s 107(2) concerns a time before a decision has been made, in order to prevent the disclosure of information for which there “is” an overriding public interest against disclosure (in the sense of there being an ongoing state which has not yet been discerned), it is appropriate to take a defensive or anticipatory stance. To prevent disclosure of the information before a decision has been made, it is necessary to preserve the position in case it is ultimately discerned and decided that there is indeed an overriding public interest against disclosure of the information. If the Tribunal errs in its preliminary view and discloses the information per se, then it is too late to undo the position.
Nevertheless, we see that an alternative position is open – that s 107(2) is only engaged where a decision (even if only an interim one) has been made. This position is arguable on two fronts:
First, on the basis that the word “necessary” in s 107(2) sets a high bar and therefore the Tribunal would not lightly form the requisite opinion.
Second, because the reference to information that “is” subject to an overriding public interest against disclosure supports a conclusion that the subsection only applies where a Tribunal has already formed a view that there is an overriding public interest against disclosure, even if only an interim view. The use of the word “is” (in contrast to the language in s 107(3)(b) which includes “could” be or “claimed” to be) suggests that a higher level of certainty is required to engage the subsection.
Under the alternative position, it would only be where the Tribunal is satisfied that the information is subject to an overriding public interest against disclosure that s 107(2) would be engaged.
Nonetheless, we prefer the view that s 107(2) of the Act is concerned with the time before a decision has been finally made. It operates at a preliminary point in time, before the Tribunal has received evidence and heard argument. In those circumstances, it is appropriate to take a pre-emptive approach or a defensive stance, because disclosure cannot be undone.
In Bachelard at [195], it was explained in relation to s 63 of the Cth FOI Act, which speaks in terms of the “necessity of avoiding the disclosure to the applicant of exempt matter”, that it will almost invariably be necessary for non-disclosure orders (and like orders) to be made:
“to prevent the disclosure to the applicant of the very documents (or parts of documents) to which the agency has refused access, if and for so long as there remains a dispute as to whether access to those documents (or particular parts of them) should be refused”.
We see that this approach is apposite here.
The approach is that whensoever there is a dispute about whether there is an overriding public interest against disclosure of the information, the opinion must be formed about exposing the evidence and arguments to the public, the applicant and the applicant’s representative. Practically speaking, it might be necessary to treat all information over which there is a dispute as being information over which there is an overriding public interest against disclosure, until a time when it is known that the information is not such information. Still, as s 107(2) is concerned with forming an opinion where there “is” an overriding public interest against disclosure of the information, there may yet be circumstances where it is clear that there “is not” an overriding public interest against disclosure of the information, even where there is a dispute about it. This might be the case, for instance, in relation to information that is in common knowledge or capable of verification by an authority that could not reasonably be questioned, such as the time of sunrise or high tide at a certain location. We accept that this might be only in a rare case. We are not to be seen to be expressing a concluded view on when this would be feasible.
Importantly, even taking a pre-emptive stance, s 107(2) provides procedural fairness by requiring the Tribunal to only exclude the public, the applicant and their representative, as necessary, to prevent disclosure of the information itself.
This leads onto the next important feature of s 107(2): that the spotlight of s 107(2) is on the receipt of evidence and argument. The focus of the opinion is on whether some or all of the evidence and arguments should be taken in the absence of the public, the applicant and the applicant’s representative. The opinion relates to whether it is necessary to exclude the public, the applicant and the applicant’s representative because disclosure of aspects of the evidence or arguments would disclose the information itself.
Yet another relevant feature of s 107(2) is that it does not distinguish the position as between the public, the applicant and the representative. The opinion must be formed in each case. There is no reason for the opinion to be formed in relation to the public and the applicant but not to the applicant’s representative. From this, it is also possible to glean that the “disclosure” that the subsection is concerned with is disclosure to all the persons mentioned (which, practically speaking, is all persons other than the Tribunal and the agency and their representatives).
In summary, as we apprehend the operation of s 107(2), it is appropriate to take a pre-emptive and defensive stance on whether the information is subject to an overriding public interest against disclosure. With that approach in mind, the Tribunal then considers whether it is necessary, to prevent disclosure of the information per se, to exclude the public, the applicant and the representative from hearing the evidence and arguments. This provides a measure of procedural fairness.
Finally, we consider s 107(3), in its immediate context.
Section 107(3) is also concerned with the position before a decision is made, but is only engaged if the relevant Minister or agency makes the application. The opinion that must be formed is worded differently from that in s 107(2). Not only is it necessary to prevent disclosure of information for which there “is” an overriding public interest against disclosure, but disclosure must also be prevented whensoever there “could” be an overriding public interest against disclosure of the information or there is a “claim” that there is an overriding public interest against disclosure of the information. For the same reasons set out in relation to s 107(2), we perceive that s 107(3) also requires the adoption of a pre-emptive and defensive stance.
As, unlike s 107(2), the opinion that is required to be formed goes beyond cases where there “is” an overriding public interest against disclosure and extends to cases where this “could be” or “is claimed to be” the state, possible exceptions, such as those referred to above in relation to the opinion in s 107(2), do not appear to be available in the case of s 107(3). The Act requires the non-disclosure of the information where there could be, or the agency claims that there is, an overriding public interest against disclosure. The added words used to describe the opinion that must be formed appear to be designed to strengthen the protection from disclosure. The opinion in s 107(3)(b) to exclude persons from receiving evidence and arguments is seemingly made easier to form than the opinion in s 107(2). Section 107(3) is a stricter provision; it is one that offers greater protection against disclosure of information.
The respondent contended that once the respondent “claims” that it is necessary to exclude the public, the applicant and the applicant’s representative from receiving evidence and arguments, then that is sufficient for the Tribunal to form the opinion referred to in s 107(3)(b). However, that pays insufficient regard to the words of the paragraph, which indicate that the “claim” referred to therein relates to the information per se and not the evidence or arguments. This issue is discussed further below. We consider that once an application is made under s 107(3), irrespective of whether there is a “claim”, the Tribunal itself must form the requisite opinion as to whether to preclude the applicant’s representative from receiving evidence and arguments.
Finally, before determining the issue, we note that the parties were invited to provide submissions on the appropriate procedure for making a determination under s 107(3), as we considered that this might be relevant to how we construe s 107(3) of the Act.
The appellant submits that a decision under s 107(3) is an interlocutory decision and accordingly it can be “revisited from time to time”. This means that the Tribunal can iteratively evaluate and re-evaluate whether it is “really necessary that certain submissions and evidence be heard in closed session” as “it may well be that, in a closed hearing, the Tribunal appreciates that there is really no reason that some, or all of the confidential submissions cannot be dealt with by open hearing (or that the representatives should be admitted)”. The appellant submits that this is a “sensible, practical interpretation of the procedure that should be adopted”.
The respondent agrees with this, but notes that “in practice this would very seldom occur because of the test under s. 107(3) and the very abridged nature of GIPA review proceedings”. The respondent submits that “[i]n practice, because s. 107(3) requires the Tribunal to accept material as confidential where an OPIAD [overriding public interest against disclosure] is claimed, it will usually only revisit that decision if the agency changes its position on what information is subject to an OPIAD”.
The respondent’s submission that the Tribunal must accept material as confidential is discussed below under the heading “What is meant by ‘information’?” Notwithstanding this, we accept what the parties have submitted that, depending on the circumstances, a Tribunal may revisit its opinion at any time during the hearing.
The appellant submits that s 107(3)(b) is not concerned with preventing disclosure of the information to the applicant’s representative. In particular, the appellant contends that the subsection is concerned with preventing disclosure of the information to the public and the applicant. It is said that only where it is necessary to avoid disclosure to the public or the applicant would the opinion be formed which would lead to shutting out the representative. The appellant refers to the “deeply rooted right of procedural fairness”. The appellant contends, when s 107(3)(b) is construed this way, the Tribunal can strike a balance between affording procedural fairness and preventing disclosure of the information to the public and the applicant, by requiring the applicant’s representative to undertake not to disclose the information. For this reason, the appellant maintains that the appellant’s representative ought not to have been shut out of the confidential hearing and ought to have been provided with all evidence and arguments.
The respondent contends that s 107(3) is concerned with preventing disclosure of the information to each of the public, the applicant and the applicant’s representatives. Therefore, there was no error in shutting out the appellant’s representatives.
We consider that there is support for each party’s position as to whom the disclosure in s 107(3)(b) relates.
The appellant’s construction (that it is only disclosure to the public and the applicant that the subsection is designed to prevent) is supported by the following:
The structure of s 107(3) speaks, at paragraph (a), of an applicant and the public, before turning to the position of a representative at paragraph (b). The distinction between the persons referred to at paragraphs (a) and (b) lends itself to a construction that the disclosure referred to in paragraph (b) is a reference to disclosure to the persons referred to in paragraph (a).
Grammatically, the opinion referred to at paragraph (b) does not easily lend itself to applying to the persons referred to in paragraph (a). If the opinion does not relate to the persons mentioned in paragraph (a), then on the mere application by the Minister or agency, the public and applicant must be excluded from hearing evidence and argument. In those circumstances, allowing the applicant’s representative into the confidential hearing would provide the only avenue for procedural fairness.
Akin to the position mentioned in the previous sub-paragraph, under s 57(2)(c) of the NSW FOI Act, which reflects the historical position, the opinion was required to be formed only in relation to the representative, whereas the applicant and the public were to be excluded at the agency’s request. Further, disclosure in s 57(2)(c) of the NSW FOI Act was construed as referring to disclosure to the applicant and the public, but not to the representative. The relevant paragraphs from Hutchinson are set out above at [53].
In the broadly analogous position, under s 63 of the Cth FOI Act, the disclosure which is sought to be prevented is disclosure to the review applicant.
A representative can undertake not to share information with an applicant or the public, or retain the information or use it for any other purpose, especially a legal representative who has duties to a court or tribunal.
The Tribunal may be assisted by hearing from an applicant’s representative, as a contradictor, during a confidential session.
One final matter is that had the reference to the opinion in s 107(3) been separated by a line break, we consider the position would have been clear that the opinion was intended to apply to each of the persons mentioned in the preceding paragraphs – the public, the applicant and the applicant’s representative. Had this been the intention, the provision would have read as follows:
(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—
(a) the public and the applicant, and
(b) the applicant’s representative
if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. (line break added)
There is no reason for us to assume that the absence of a line break was accidental. In the absence of a line break, the structure of the subsection lends itself to a construction that supports the appellant’s construction, which refers to the “automatic exclusion of the applicants themselves”. If the opinion is only to be formed in relation to the applicant’s representative, then the public and the applicant must be excluded from the hearing of evidence and argument on the Minister or the agency’s application.
There is also support for the respondent’s construction to the contrary that the disclosure to be prevented includes disclosure to the applicant’s representative:
The Act defines disclosure broadly and may apply to anyone: see the Act, Sch 4, cl 1, which states that “disclose information includes make information available and release or provide access to information”. It follows that we must construe “disclosure” in its context within s 107(3) of the Act to determine if it extends to a legal representative or not.
The appellant’s construction relies on paragraphs (a) and (b) being read distinctly, which is at odds with the conclusion in Black, in which the Tribunal found that the opinion must be formed for each of the public, the applicant and their representative. As noted above, Black has been followed several times and is accepted by the respondent.
There are textual differences between s 57(2)(c) of the NSW FOI Act and s 107(3) of the Act, including the position of the reference to the opinion in relation to the representative and the applicant and the public. The scope of the provisions is also different. Therefore, the way the historical provision was construed should not be given too much weight.
There are textual and contextual differences between the Act and the Cth FOI Act.
Not all applicants are represented. Therefore, the appellant’s construction puts self-represented applicants at a procedural disadvantage.
On balance, even though s 107(3) indeed separates out the public and the applicant in one case (paragraph (a)), and the applicant’s representative in another case (paragraph (b)), and there is no line break, we do not consider that this necessarily leads to the conclusion that the Tribunal must exclude the public and the applicant from hearing evidence and argument on the Minister’s or agency’s mere application. Whilst these textual cues leave room for such a construction, there are countervailing factors, including the following:
Section 107(3) covers a wider array of circumstances than were covered by s 57(2)(c) of the NSW FOI Act. Section 107(3) is not limited, for instance, to information in cases where there is a conclusive presumption that there is an overriding public interest against disclosure. There is no mechanism to limit the circumstances where the Minister or agency could make an application. To shut out an applicant from hearing evidence and argument, on the mere application by the Minister or agency, would constitute a significant in-road into procedural fairness in cases where the applicant is not represented.
The movement of the position of the reference to the opinion from preceding the reference to the applicant’s representative to following it appears deliberate. As the opinion is now referred to after the references to each of the public, the applicant and the representative, this leaves open the possibility for the opinion to apply to all, even if separated by (a) and (b).
In Black it was decided that the opinion applies to the public and the applicant too. We note that Black has not since been given negative treatment and has since been followed.
Ultimately, we accept that Black is correct, insofar as holding that the requisite opinion must be formed in relation to the applicant and the public, before they may be shut out of a confidential hearing. This would provide procedural fairness by leaving open the possibility of a contradictor at a confidential hearing whilst still precluding disclosure of the information itself, as the Tribunal must first form the opinion that it is necessary before excluding the public, the applicant and the applicant’s representative from the hearing. This would afford what procedural fairness is possible under provisions that otherwise favour non-disclosure.
As to the question of who disclosure is to, as noted above, in Hutchinson, s 57(2)(c) construed the disclosure as being disclosure to the public and the applicant, but that disclosure of excluded matter to the applicant’s representative was not ruled out. Whilst we see that this struck an appropriate balance between protecting the information and affording procedural fairness in the circumstances that obtained under that Act, we have decided that such a construction is not to be preferred in relation to the current Act. This is primarily on the basis that such a construction would provide an opportunity for the information itself to be disclosed to the applicant’s representative, under s 107(3)(b), when the same result would not obtain under s 107(2), had s 107(3) not been relied on. We see that s 107(3) is a stricter provision than s 107(2) and that to construe s 107(3) as providing an opportunity for disclosure of the information itself to the applicant’s representative, when that would not be the result under s 107(2), does not produce a harmonious result.
Where s 107(3)(b) is engaged, the Tribunal must exclude the applicant’s representative from hearing evidence and arguments, where it forms the opinion that such a course is necessary to prevent disclosure (including disclosure to the applicant’s representative) of information “for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure”.
The appellant’s second major point is that, at a minimum, the appellant was entitled to notice of the issues in the proceedings and specifically that the respondent relied upon clause 4(d). The import of this point is that, because the fact that the respondent relied on clause 4(d) was withheld, the appellant was denied procedural fairness because he was not given the opportunity to answer that aspect of the respondent’s case.
The second point raises a question as to whether s 107 authorises the withholding of a consideration tending in favour or an overriding public interest against disclosure relied on by the respondent. If it is conceivable that withholding such information is consistent with s 107, the question then becomes whether it was permissible, in the circumstances of this case, for the fact that the respondent relied on clause 4(d) to be withheld from the appellant.
The respondent provided an example of when s 107 would allow the withholding of a consideration in favour of there being an overriding public interest against disclosure, because it would disclose the information itself.
The example describes a situation where a parent seeks access to a teacher’s file on a student, which includes information stating that the teacher made a risk of harm report about the child under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Such information would be subject to a conclusive presumption of an overriding public interest against disclosure under cl 10 of Sch 1 to the Act.
Clause 10 of Sch 1 to the Act provides:
10 Care and protection of children
It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies.
If the agency revealed its reliance on that clause in refusing access to parts of the teacher’s file, that would have the consequence of revealing the information itself, namely that the teacher made a risk of harm report.
The example demonstrates that revealing the agency’s reliance on a particular consideration can result in the disclosure of the information, for which there is an overriding public interest against disclosure. At the level of principle, it follows that s 107 must permit evidence to be received and argument to be heard in the absence of the persons named in s 107(3)(a) and (b), in order to prevent disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
With that example in mind, the respondent contends that it was sufficient for the Tribunal to preclude disclosure to the applicant of their reliance on clause 4(d), because disclosing the specific clause relied upon would have the effect of disclosing the information over which a claim had been made. It was sufficient, so it was contended, for the respondent to have made the application and the claim for the Tribunal to reach the necessary opinion.
The appellant contends that the mere application coupled to the claim was not sufficient for the Tribunal to reach the necessary opinion that the applicant’s representative should be shut out from learning about the reliance on clause 4(d).
In order to determine the second point, we consider it necessary to answer the following questions:
What is meant by “information”?
What is the role of the respondent’s claim?
When would it be necessary to prevent disclosure?
Section 107 of the Act speaks in terms of disclosure of “information”, not “government information”. Nevertheless, it is clear from the context that each of the references to “information” in s 107 is a reference to “government information”. When s 107 refers to disclosing “information” it is always in the sense of “information for which there is an overriding public interest against disclosure”. When read with ss 13 and 14 of the Act, a reference to “information” in s 107 must construed to be a reference to “government information”.
“Government information” is defined in s 4 of the Act as follows:
government information means information contained in a record held by an agency.
10 Meaning of “record”
(1) In this Act—
record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.
(2) A reference in this Act to a record includes a reference to a copy of the record.
(3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
Putting this together, the information referred to in the opinion the subject of s 107(3)(b) is information contained in any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means, held by an agency.
This means that the information which must be prevented from being disclosed is the government information (as defined) the subject of the review application (i.e., the disputed information) and any other information the disclosure of which would disclose the disputed information the subject of review.
Once an agency makes an application to exclude a representative from receiving evidence and hearing argument, the Tribunal must consider whether it is necessary to do so in order to prevent the disclosure of the government information “for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure”.
Before excluding the representative, the Tribunal was required to form the opinion that it was necessary to exclude the representative from hearing argument and evidence, in order to prevent disclosure of the disputed information. It is the disputed information over which a claim may be made.
The claim as referred to in 107(3)(b) is a reference to the claim by an agency that there is an overriding public interest against disclosure of certain information contained in records held by the agency, to which the access applicant has been denied access. We refer to these records as the “primary records”. The primary records make up, at a practical level, the subject of the proceedings.
The respondent, however, submitted that the “claim” could extend to materials such as written submissions or evidence or parts of an agency’s reasons for decision for refusing the access application. We refer to this type of material as “derivative material”. The respondent asserted that a claim could be made with respect to derivative material. It was submitted that once a claim is made over derivative material, the Tribunal has no choice but to hold a confidential hearing and withhold from disclosure the derivative materials identified by the respondent as being subject to an overriding public interest against disclosure.
There is no doubt that disclosure of derivative material might indeed disclose the disputed information itself. Put another way, disclosure of derivative material might disclose primary records.
However, contrary to the respondent’s submission, whilst derivative material might indeed disclose the primary records which include the disputed information that is subject to an overriding public interest against disclosure and therefore must not be disclosed, the derivative material per se is not the subject of the proceedings. Any submission or assertion that disclosure of the derivative material might disclose the disputed information is not tantamount to a “claim” for the purposes of s 107(3)(b) that the derivative material is itself subject to an overriding public interest against disclosure. The Tribunal must itself consider, on an agency’s application, whether to exclude from disclosure the derivative material, because a claim has been made in relation to the primary records, here the disputed information, which it is submitted would be disclosed as a consequence of disclosing the derivative materials.
It is the disputed information that can be the subject of a claim for the purposes of s 107(3)(b). Where derivative material is said to disclose the disputed information, it is a matter for the Tribunal to consider that contention.
Where there is a mixture of primary records and derivative material such as submissions, the Tribunal may form an opinion in relation to some but not other material. Further, once the Tribunal has had an opportunity to further consider the derivative material, it may change its initial view about the necessity of withholding the material in order to prevent disclosure of the disputed information. This is where the iterative process spoken of above might come into play. A Tribunal might, initially, consider evidence and submissions in a confidential session, on the strength of the agency’s submission that it was necessary, but then open the hearing or provide additional materials to the applicant’s representative during the hearing.
The appellant contends that whatsoever is the position about the operation of s 107(3)(b), there was no basis for failing to notify the applicant’s representative that the respondent relied on clause 4(d) and allowing them to make submissions about it. Since s 107(3) of the Act could not authorise the non-disclosure, the failure to notify them amounted to a breach of procedural fairness.
The respondent submits that as the Act does not authorise an agency to disclose information over which there is an overriding public interest against disclosure, the respondent had no authority to disclose the material regarding clause 4(d), nor could they identify that they relied on this public interest consideration against disclosure. This is because the respondent formed the view that the material regarding clause 4(d) and reliance on that particular public interest consideration against disclosure were, themselves, subject to an overriding public interest against disclosure. The respondent said:
“The Secretary formed the view that material regarding cl. 4(d) and identification of that PICAD [public interest consideration against disclosure] was subject to an OPIAD [overriding public interest against disclosure]. Accordingly, the Secretary had no authorisation to disclose this information in proceedings before the Tribunal (s. 66(1) of the CAT Act), except to the Tribunal (S. 66(3)).”
The appellant submits that s 107(3) of the Act deals separately with the receipt of evidence and submissions. Accordingly, so it is said, the respondent must show why its submissions were “necessary” to withhold, “as distinct from the documents in dispute, or even closed evidence”, relying on Re Dunn and Department of Defence (2004) 84 ALD 419 ; [2004] AATA 1040 at [100]-[104].
The appellant submits that the word “necessary” means “reasonably appropriate and adapted” (Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at [39]), and “because it is a procedural provision restricting a deeply rooted right of procedural fairness, which attracts the principle of legality, it should be interpreted narrowly”, relying on North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [11].
The appellant continued:
“Section 107(3)(b) involves a balancing exercise in relation to representatives of access applicants (confirmed by the different automatic exclusion of applicants themselves in s 107(3)(b)). The Secretary’s submissions fail to engage with this legal context.”
The appellant submits that the respondent makes “no real attempt” to distinguish Bachelard, “which held that the failure to disclose the reason for refusing access to information in a freedom of information proceeding in an administrative tribunal was unfair”.
Where there is an application for a confidential hearing on the basis that a claim that information contained in records held by the agency to which access was denied is subject to an overriding public interest against disclosure, then the Tribunal must form the requisite opinion: i.e., the opinion that it is necessary to prohibit disclosure of some or all of the materials to prevent disclosure of the disputed information over which there is a claim. Where the materials are derivative, such as written submissions of the respondent, it is not sufficient for the Tribunal to merely accept the assertion or submissions of the respondent that by exposing those submissions the Tribunal will be disclosing the disputed government information.
Otherwise, if the Tribunal must accept the mere submission or assertion of the agency, then the opinion would have no utility. Beyond satisfying itself that the submission had been made, there would nothing for the Tribunal to form the opinion about.
We would not construe the Act as requiring the Tribunal to perform an empty task. As we have construed it, the Tribunal must consider who to exclude from the hearing and for which aspects of it and whether there are materials that should not be disclosed.
Here, the Tribunal was required to consider whether to exclude the applicant’s representative from being notified that the respondent relied on clause 4(d). It could only have formed that opinion if satisfied that disclosure of reliance on clause 4(d) disclosed some aspect of the disputed information.
Putting the foregoing together, including as to whom disclosure is to be prevented, the opinion that the Tribunal was required to form in this case, which centred on the applicant’s legal representative, was as follows:
that it is necessary to receive evidence and hear argument in the absence of the public, the applicant or the applicant’s representative;
to prevent the disclosure to the public, the applicant or the applicant’s representative;
of information contained in any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means, held by an agency for which there is claimed to be, an overriding public interest against disclosure.
To the extent there is a contention that evidence or submissions should not be disclosed, the question is whether disclosing such derivative material will disclose the government information the subject of the access application for which there is, or could be or the agency claims there is, an overriding public interest against disclosure.
The Tribunal heard extensive submissions from the parties as to the necessity of holding the confidential hearing. These are set out at [6]-[18] of the first Decision. The submissions centred on whether the appellant’s representatives should be allowed into the confidential hearing. The respondent maintained that disclosure of the confidential material, including to the applicant’s legal representatives, would amount to disclosure of the disputed information. The Tribunal’s reason for holding the confidential hearing, at [19] of the first Decision, is set out above at [38].
For the reasons already canvassed, we see no error in excluding the appellant’s representative from the confidential hearing, per se. We have already explained why we do not accept the appellant’s contention that the disclosure to which s 107(3) is referrable is disclosure to an access applicant and the public. We are satisfied that it is indeed concerned with disclosure to an access applicant’s representative. However, it is disclosure of the disputed information that is relevant; the Tribunal must consider whether the evidence and submissions disclose the disputed information.
As to withholding disclosure of the respondent’s reliance on clause 4(d), it is not apparent that the Tribunal independently turned its mind to whether the asserted “confidential material” was aptly so described by the respondent.
Clause 4(d) provides that there is a public interest consideration against disclosure of information if it could reasonably be expected to:
prejudice any person’s legitimate business, commercial, professional or financial interests.
Ultimately, we infer that the Tribunal concluded that by merely referring to clause 4(d), the Tribunal was not itself disclosing any information which it found to be subject to an overriding public interest against disclosure. We infer this because the respondent’s reliance of clause 4(d) is disclosed in the first Decision. As the second Decision reveals, the Tribunal also considered it necessary to include reference to clause 4(d) in order to expose its reasoning, in accordance with s 62 of the NCAT Act (second Decision at [23]-[25] and [31]-[33]).
The respondent submits that there is nothing in the Act that prevents an agency from withholding the public interest consideration against disclosure relied on either in the agency’s decision or in its submissions to the Tribunal. This is on two bases:
The requirements for a notice of an agency’s decision to refuse to provide access under s 61 of the Act do not include a requirement to state the public interest consideration against disclosure, or the overriding public interest against disclosure relied on.
The requirements for notices of decision include that the notice “must not disclose any information for which there is an overriding public interest against disclosure” (s 126(1)(e) of the Act). This requirement is submitted to extend to revealing the nature of the public interest consideration against disclosure, or the overriding public interest against disclosure, relied upon.
In response to the respondent’s contention that there is nothing in the Act that prevents an agency from withholding a consideration against disclosure, the appellant submits that “it is the implication of the obligation to accord procedural fairness – which includes, at minimum, notice of the issues in the proceedings – that prevents an agency from conducting proceedings in that way”.
The appellant also submits that the Tribunal’s finding that knowledge of the consideration was “so vague and so tenuously related to the information received in closed session” at [32]-[33] of the second Decision, is “unchallenged” and “fatal” to the respondent’s argument that the consideration of the disclosure itself is information that is subject to an overriding public interest against disclosure.
The respondent contends that it was correct to keep from the applicant and his representative their reliance upon clause 4(d), as to disclose it would have disclosed the government information over which there was a claim.
Relatedly, the appellant argued that if the respondent did not wish to disclose elements of its decision, the correct approach would have been to neither confirm nor deny the existence of the requested information. The terms of the appellant’s request are set out at [1] above.
In response, the respondent submitted that a “neither confirm nor deny decision” will typically be made when there is an overriding public interest against disclosure over the fact that the information does or does not exist. The respondent submits that an example of this approach is where a person requests “any child at risk reports made about me by my wife” and that due to the context of such a request, to reveal that there is or is not a report of that kind would reveal reported information which is subject to the conclusive presumption of an overriding public interest against disclosure referred to above at [112]-[113].
In this case, the respondent did not make a “neither confirm nor deny decision”. Instead, it took the view that it could reveal or disclose that the agency held information within scope.
This may be explicable by the fact that merely confirming that some information within scope existed does not reveal anything about the nature of the information, given the broad terms of the access application extracted above. However, the fact that some information regarding a ban of Ms Nasser existed itself has a negative connotation. We do not think the negative connotation is given more specificity or reveals the information itself by merely disclosing reliance on clause 4(d).
The only information that is disclosed or revealed by notification to the appellant that the respondent relies on clause 4(d) is that a public interest consideration against disclosure, in this case, is that disclosure of the disputed information (the government information over which a claim was made) would prejudice a person’s legitimate business, commercial, professional or financial interests. Disclosing reliance on an assertion by the respondent that the government information touches on those topics does not disclose the government information itself. It is too vague to be meaningful.
Ultimately, the respondent did not challenge the Tribunal’s refusal to redact from publication in the first Decision the references to clause 4(d). Having regard to the lack of specificity in any disclosure occasioned by revealing the respondent’s reliance on clause 4(d), it was not necessary to withhold disclosure of reliance on clause 4(d) to prevent disclosure of the disputed information. Revealing that clause 4(d) was relied upon does not reveal any more information than revealing that there was information responsive to the appellant’s request.
To the extent that the Tribunal formed the opinion, as referred to in s 107(3)(b), that it was necessary to withhold from the applicant’s representative the fact of the respondent’s reliance on clause 4(d), that opinion was formed in error, as borne out by the ultimate publication in the first Decision of the fact of reliance on clause 4(d).
Withholding reliance on clause 4(d) from the applicant’s representative, in the circumstances of this case, was not mandated by s 107(3) of the Act.
As to the first point, merely excluding an applicant’s representative from the confidential hearing does not amount to a breach of procedural fairness. Section 107(3) of the Act authorises the exclusion of the public, the applicant and the applicant’s representative when the opinion in that section has been formed. Other than with respect to the second point, we do not discern a breach of procedural fairness as a result of the appellant’s representative being excluded.
As to the second point, to the extent that by Ground 1(b) the appellant contended that s 107(3) of the Act does not authorise the withholding of any consideration tending against disclosure relied on by the respondent, the ground does not succeed.
However, when we consider this particular case, we do not accept that notification of the public interest considerations relied upon by the respondent, including clause 4(d), risked disclosing the disputed information itself.
An applicant should, unless disclosure of the consideration discloses the information itself, at least be in a position to make submissions about the weight to be given to the various factors even without knowing the precise content of the submissions as to why the public interest factor is engaged. Here, disclosure of reliance on clause 4(d) was of itself too vague to disclose the disputed information. Withholding notification was therefore not authorised by s 107(3)(b) of the Act. To the extent the Tribunal formed the opinion it was authorised by s 107(3)(b) or that disclosure of reliance on clause 4(d) disclosed the disputed information, this was an error. There was accordingly a breach of procedural fairness, as the appellant was denied an opportunity to be heard in relation to the case the respondent was running. In the circumstances of this case, withholding reliance on clause 4(d) was not authorised by s 107(3).
Where there is a breach of procedural fairness, the threshold for whether the breach is material is relatively low. It is necessary only for us to be satisfied that but for the breach, the result “could”, not “would”, realistically have been different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [7] and [9]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1]. Materiality needs only to be established by “reasonable conjecture”: Nathanson at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ), and it is not necessary to put on evidence or submissions as to what would have been done differently: Nathanson at [84] (Gordon J).
The respondent submitted that even if the appellant’s contention that there was a denial of procedural fairness is accepted by the Appeal Panel, any denial was not material, for the following reasons:
“[e]ven if Mason’s legal representatives were allowed access to the confidential hearing on cl 4(d), the consideration is such that there was very little of relevance that could have been added”, and
“[e]ven if Mason’s arguments could have affected the weight given to cl. 4(d), the decision ultimately applied four [overriding public interests against disclosure]. It is reasonable to conclude that the [public interest considerations against disclosure] would have still outweighed the public interest in favour of disclosure”.
The appellant submits that the outcome could have “realistically been different” if he had the opportunity to:
“adduce evidence of Ms Nasser’s business, commercial, professional or financial interests (or know what the Department asserted they were in closed session)”; or
“cross-examine the Secretary’s witness on the effect of the release of the information”; or
“make submissions as to the application or legal operation of the consideration.”
Here, the Tribunal gave “significant weight” to clause 4(d). Had the applicant been given notice that clause 4(d) was relied on, submissions, at least as to weight, could have been given.
As the conclusion as to whether there is an overriding public interest against disclosure under s 14 requires a weighing up exercise, it is immediately apparent that once the weight given to one factor is undermined, it can be said that the outcome could have been different.
We are satisfied that, realistically, had there been disclosure of reliance on clause 4(d) the result could have been different.
The breach of procedural fairness is material. Ground 1 succeeds.
“The Tribunal pre-judged the respondent’s application to exclude the appellant from the confidential session, breaching the rule against apprehended bias.”
The appellant submits that this ground is available by right. The respondent accepts that this ground raises a question of law, and that leave is not required.
A question of law indeed arises. The question of law is whether the proceedings miscarried due to apprehended bias.
Where apprehended bias is alleged, the question is whether a fair-minded and informed lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues in the case: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]. It is not necessary for the appellant to demonstrate materiality, as materiality is inherent in the nature of the breach: LPDT at [6]; Nathanson at [98]-[102] (Edelman J); Brazel at [91].
The Tribunal must accord procedural fairness to the parties and act impartially as set out in s 38(2) and (5) of the NCAT Act.
The appellant submits that the respondent’s application for confidentiality orders was “granted immediately, and prior to the applicant being given any opportunity to make submissions”. The appellant submits that it follows that the Tribunal’s finding in the first Decision at [19] (set out above at [38]), misdescribes what happened during the hearing. There the Tribunal said that s 107 required it to consider and receive evidence in the absence of the appellant and his legal representative “[a]fter hearing the parties’ submissions”. Instead, the appellant submits that the Tribunal determined the application before hearing from the appellant.
The respondent contends that the Tribunal gave the appellant a chance to be heard on the application under s 107(3) of the Act, because the appellant lodged written submissions on the issue and, following a request by the appellant’s representative to be heard on the issue, the Tribunal heard “lengthy oral submissions from both parties and engaged in a lengthy discussion with the appellant’s representative on the issue”.
The appellant submits that the respondent’s submissions are not to the point, as it is “not in dispute that the appellant was permitted to make submissions on the Secretary’s application”, but that “the Tribunal had pre-determined that application by the time he made those submissions”. The appellant acknowledges that written submissions had been made but submits that he “required the opportunity to make oral submissions, especially where the confidentiality application was, itself, confidential and not disclosed to the appellant”.
The appellant also submits that the Tribunal effectively announced the outcome of the application before it was heard, stating, “[t]hat is the Tribunal’s ruling”. The appellant argues that “[a] peremptory announcement of the outcome of an application, as soon as the submissions are mentioned, constitutes a ‘departure from the standards of fairness and detachment required of a trial judge’ and an ‘impermissible indication of prejudgment’”, relying on Antoun v The Queen [2006] HCA 2; 80 ALJR 497 at [29] and SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 (SunshineLoans) at [46].
In making these submissions, the appellant acknowledges that “merely putting a contrary view (even a strong preliminary view) would not ordinarily amount to prejudgment”, citing SunshineLoans at [102], and that “the Appeal Panel would give latitude to how the member raises the issues”. Accordingly, it was accepted that if the Tribunal’s statements were read as a firm preliminary view, then this ground would fail.
The respondent submits that the appellant mischaracterises what the Tribunal in fact did. The respondent submits that the reference to the “Tribunal’s ruling” does not support a finding that the Tribunal made a peremptory ruling, for the following reasons:
The Tribunal indicated that it had read the appellant’s written submissions.
When viewed in the context of the comments made by the Tribunal immediately prior, it is apparent that the Senior Member was referring to the Tribunal and Appeal Panel’s previous “rulings” on the application of s 107(3); i.e., the relevant authorities. The Tribunal was not making a “ruling” in the proceedings. Rather, it is properly classified as a “preliminary view”.
The Tribunal “invited” the appellant’s representative to make submissions on the issue.
The Tribunal then engaged in a “lengthy” discussion with the appellant’s representative on the issue and heard from both parties.
The Tribunal then made its final determination.
The respondent notes that “[it] is ordinary for judicial officers to attempt to keep proceedings moving efficiently” and that “[t]his is also consistent with the guiding principle under s. 36 of the CAT Act. Such a direction is simply good case management and not grounds for apprehended bias, particularly when the judicial officer has already received written submissions on the issue”.
The appellant notes the difficulty with the respondent’s submission that the Tribunal’s statement “[t]hat is the Tribunal’s ruling” ought to be read as “those are the Tribunal’s rulings”, as “it is not what the Tribunal said”.
Finally, the appellant also submits that the Tribunal erred in stating that it has no discretion under s 107. At first instance, the appellant submitted that the Tribunal did indeed have a discretion. The appellant describes the discretion as “the evaluative decision-making process coupled with the duty in s 107(3)”.
In terms of apprehended bias, as explained in Ebner at [8] it is necessary to identify the following:
First, what it is said might lead the judicial officer to decide the case other than on its legal and factual merits.
Second, the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
Once those two steps are taken, the reasonableness of the asserted apprehension of bias can be assessed: Ebner at [8]. The fair-minded observer is taken to be aware of the legal, statutory and factual context in which the decision is to be made: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23].
Seen through this lens, the factor that is contended might lead a fair-minded observer to reasonably apprehend that the Tribunal might not bring an impartial or unprejudiced mind to bear, is that the Tribunal had a fixed view of the law. However, this must be contrasted with the fact that the Tribunal had the benefit of written submissions and alerted the appellant to previous decisions of the Tribunal which the Tribunal considered relevant and against the appellant’s case, and heard oral submissions from the appellant. We do not consider that the test for apprehended bias has been made out in those circumstances.
We do not consider that the Tribunal mischaracterised, at [19] of the first Decision, what occurred. We consider that, on a fair reading of the events at the hearing, the Tribunal expressed a firm preliminary view, but did not pre-judge the issue.
As to the contention that the Tribunal was wrong to say that there was no discretion, in the sense of the Tribunal’s role in relation to s 107(3) requiring an evaluative power coupled to a duty, we accept that is an appropriate way to frame the duty of the Tribunal to form an opinion, independently of the respondent’s application. However, we consider that even if wrong in relation to this, that does not affect the question of bias or breach of procedural fairness, which is the essence of Ground 2. In any event, we consider a corollary of this issue in relation to Ground 3.
Ground 2 is dismissed.
“Alternatively, the Tribunal’s evaluation under s 107(3)(b) of the Act miscarried by failing to take into account that the appellant’s representatives could not otherwise know about consideration (4)(d)(at [6]-[18], [98]).”
The appellant submits that this ground is by right. The respondent agrees that this ground raises a question of law, and that leave is not required.
As noted in relation to the previous ground, there may be some question over whether the Tribunal considered there to be any discretion. Also, as noted, we accept that it is appropriate to characterise the Tribunal’s role in forming an opinion as exercising an evaluative power, coupled to a duty. We do not consider this to be discretionary in the sense that it attracts the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) at 505. As noted in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [49], the question of whether the House v The King standard applies depends on whether minds might legally and reasonably differ on the correct outcome; where there is room for more than one correct outcome. It does not depend on whether the process is evaluative. Nevertheless, we consider this ground on two fronts.
Assuming that s 107(3) requires the exercise of a discretion, Ground 3 raises the question of law of whether the discretion miscarried due to a failure to take into account a relevant consideration, in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40 (Peko***-Wallsend***). This raises a question of law which gives rise to error of the kind referred to in House v The King at 505 (“House v The King error”). Even assuming that the task under s 107(3) is not discretionary in the sense discussed in Peko*-*Wallsend, we apprehend that Ground 3 raises the question of law as to whether the Tribunal misapprehended its statutory task or asked itself the wrong question, by failing to have regard to the undisputed fact that the appellant’s representatives could not otherwise know about the respondent’s reliance on clause (4)(d). This too raises a question of law: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [67], [71]-[74]; Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [41].
The appellant submits that the reasons for decision in the first Decision demonstrate “no engagement with the fact that the Department was withholding a consideration against disclosure”. This is said to be shown by the fact that the Bachelard case is not mentioned in the first Decision and that, in contrast to the rest of the reasons in the first Decision, which are “detailed”, the reasons on this issue are not. Therefore, so it is said, “an inference is to be drawn that they are a complete explanation for the exercise of power”, citing AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 at [61] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34].
The appellant notes that although the appellant has an initial onus to show that the error could, not would, have realistically been different had there been no error, it is sufficient to say that the applicant could have made submissions on clause 4(d), and that the Tribunal would have approached the applicant’s further evidence or submissions with an open mind: LPDT at [15]. The appellant submits that “unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, it will be material”, relying on LPDT at [16].
The respondent repeats its submissions in relation to Ground 1, that where s 107(3) of the Act and s 66 of the NCAT Act refer to “information”, this may extend to the nature of the overriding public interest against disclosure itself; that is, the consideration (here, clause 4(d)) by which the agency claims that there is an overriding public interest against disclosure over that information.
The respondent submits that the “Tribunal’s decision not to refer to Bachelard” in the first Decision “reflects nothing further than that the Tribunal did not consider it relevant, or at least not sufficiently relevant to refer to in its written decision”. The respondent notes that authority from other jurisdictions “can be of assistance” but that “ultimately the interpretation” of s 107(3) of the Act “turns on the words of that provision and its legislative context”.
In reply, the appellant, as he did under Ground 1, rejects the respondent’s position that “the agency should, merely by ‘claiming’ confidentiality, be able to conclusively determine what information must be withheld”. The appellant submits that the respondent “does not engage with the concept that s 107(3)(b) requires an evaluation of the information and submissions in issue, in its procedural context, and may only exclude representatives where the Tribunal has formed the opinion that it is necessary to do so”. The appellant accepts that, “at least on an interim basis”, “an important consideration is preserving the confidentiality of disputed information”, but submits that “is not the only consideration”.
We are satisfied that the Tribunal did not consider whether the respondent’s reliance on clause 4(d) could be disclosed. In forming its opinion, the Tribunal did not highlight that it was withholding from notification the respondent’s reliance on a particular statutory provision, which is in a different category to evidence or submissions that themselves disclose disputed information. Further, when the first and second Decisions were published, there was no basis exposed as to why this reliance could not have been disclosed.
For the reasons identified in relation to Ground 1, disclosure of reliance on clause 4(d) could, realistically, have made a difference.
Ground 3 is allowed.
6 Secrecy provisions
(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
(2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
In the proceedings below, the respondent submitted that the consideration contained in cl 6 should be given weight against disclosure of the information under the Act on the ground that the “information is protected by s 257 of the CAS Act, which prohibits disclosure of information obtained in the administration and execution of the CAS Act, unless one of the exemptions under s 257(1) applies” (at [86] of the first Decision).
For completeness, we set out below s 257 of the CAS Act:
257 Disclosure of information
(1) A person must not disclose any information obtained, or to which the person otherwise has or had access, 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
(b1) in connection with the administration or execution of a law of some other State or Territory in its application to an inmate who has been, or is to be, transferred to that State or Territory pursuant to—
(i) a direction referred to in section 45, or
(ii) a warrant referred to in section 49, or
(iii) an order of transfer under the Prisoners (Interstate Transfer) Act 1982, or
(c) for the purposes of any legal proceedings, or
(d) in accordance with a requirement of the Ombudsman Act 1974 or with any request made by the Ombudsman, or
(d1) to the Commissioner of Fines Administration in connection with the administration or execution of the Fines Act 1996 (including for the purpose of the imposition, administration or enforcement of a fine), or
(e) with other lawful excuse.
Maximum penalty—100 penalty units or imprisonment for 2 years, or both.
(2) Information may be disclosed as referred to in subsection (1) (b1) despite anything to the contrary in the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002.
(3) Without limiting the disclosures that may fall within subsection (1) (e), a person makes a disclosure with lawful excuse for the purposes of that paragraph if the disclosure is—
(a) authorised by the Commissioner, or
(b) in accordance with an official policy made by the Commissioner for the purposes of this section.
(4) Subsection (3) applies to a disclosure made by a member of the Parole Authority or the Review Council, as if a reference to the Commissioner were a reference to the Chairperson of the Authority or the Chairperson of the Review Council (as applicable).
The appellant notes that the Tribunal placed “some weight” on s 257 of the CAS Act (first Decision at [153], [176]) which the appellant submits “fed into the ultimate evaluation” that the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure (first Decision at [174]-[177]).
Grounds 4-7 raise purported issues with the Tribunal’s reasoning at [147]-[153] of the first Decision, in relation to the CAS Act, which are set out below, with the preceding paragraphs for context:
Public interest considerations against disclosure
140 The respondent relies upon cll 3(a), 3(b), 4(d) and 6 of the table to s 14(2) of the GIPA Act.
Clause 3(a) - reveal an individual’s personal information,
Clause 3(b) - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998…
141 The respondent argues that disclosure of the disputed information could reasonably be expected to reveal Ms Nasser’s personal information and that it would contravene an information protection principle under the PPIPA.
142 The applicant argues that cl 3(a) does not apply to the disputed information on the basis that the information regarding the visitor ban that was imposed upon her in 2007 is already available in a publicly available publication.
143 The available evidence is that in 2007, the applicant was the co-author of an article which reported that Ms Nasser was prohibited from visiting NSW Correctional Centres and that the reason for the ban was the “redirection of inmate’s telephone calls.”
144 Having reviewed the unredacted CSNSW Memorandum in the confidential hearing, I am satisfied that it contains personal information about Ms Nasser that is not available in a publicly available publication.
145 Having also reviewed the unredacted OIMS Entry in the confidential hearing, I am satisfied that this also contains personal information about Ms Nasser that is not available in a publicly available publication. Therefore, I am satisfied that cl 3(b) of the table to s 14(2) of the GIPA Act applies to the disputed information.
146 I am satisfied that cll 3(a) and 3(b) should be given significant weight.
Section 257 of the CAS Act and cl 6 to the table to s 14(2) of the GIPA Act
147 There is no evidence before me as to how the information that was reported in 2007, came to become available in a publicly available publication at that time.
148 Mr Bell argued to the effect that it must have been released by CSNSW, as in cross-examination Ms Goldie stated that when the OIC releases information publicly, it is released under s 257 of the CAS Act.
149 However, I take notice of the fact that s 257 of the CAS Act did not exist in 2007 and I reject the proposition that the information relating to the Commissioner’s decision in 2007 was publicly released by his office under the terms of a provision that had not yet been enacted.
150 [NOT FOR PUBLICATION]
151 I consider it likely that the applicant is the only party to these proceedings who would likely know the source of the information that he reported in 2007 and his evidence does not address this matter.
152 In any event, in Thomson, the Tribunal held that the words “publicly disclosed” requires there to have been a prior disclosure of information to the general public and there is no evidence of disclosure to the general public by CSNSW.
153 I am satisfied that these public interest considerations should be given some weight, noting that they are subject to the provisions of s 11 of the GIPA Act.
(Emphasis in original)
By Ground 4, the appellant contends that the Tribunal “erred in holding”, at [151] of the first Decision, “that s 257 of the Crimes (Administration of Sentences) Act was not enacted in 2007”. Ground 4 is said to be available by right.
The respondent “does not oppose Ground 4” and “agrees that the Tribunal erred in finding that s. 257 of the CAS Act had not been enacted in 2007”. However, the respondent disputes that Ground 4 raises a question of law and thus submits that the appellant requires leave. The respondent submits that the “Tribunal’s finding that s 257 of the CAS Act was not enacted in 2007 is an error of fact as it relates to the factual question of whether the provision was enacted in 2007, not how the provision should be interpreted”.
Further, the respondent disputes that the error is material. The respondent submits that, contrary to the appellant’s submissions:
“[i]f the error is at all material to weight, it can only be to the fact that cl. 6 should have been given additional weight, on the basis that the provision was in place at the time the information was created and has been in force ever since”.
Further still, the respondent submits that “irrespective of the Tribunal’s error there is no evidence that the information in dispute was released lawfully under s. 257 in 2007”. Accordingly, so it is said, “the Tribunal’s error on this issue is irrelevant”. The respondent also disputes the appellant’s contention that s 257 of the CAS Act not yet having been enacted was the only reason the Tribunal gave to reject the appellant’s argument.
The respondent also notes that the Tribunal found that there is no evidence of how the information reported in 2007 came to be in the public domain (first Decision at [147]), and that a file in Ms Nasser’s name has since been destroyed (first Decision at [159]), so it is not possible to review the file to ascertain whether or how information was disclosed or otherwise released by the respondent. Whilst the respondent acknowledges that lawful disclosure by Corrective Services under the CAS Act is a possible source of the disputed information, it is submitted that the appellant “overstated the conclusion that can be reasonably drawn” from the respondent’s witness’s evidence, which was to the effect that the respondent ordinarily complies with s 257 of the CAS Act and therefore if the information had been released by the respondent, it would have been released lawfully.
Notwithstanding the respondent’s submissions to the contrary, we are satisfied that Ground 4 raises the question of law of whether the Tribunal applied the law as it stood at the relevant time. Leave to appeal is therefore not required.
However, if it were necessary to grant leave, we would do so. We see that there is a clear risk of injustice if the error, which the respondent accepts occurred, was to stand.
The impact of s 257 of the CAS Act on the first Decision is nuanced. Section 257 comes into play in two respects. The first relates to whether cl 6 is engaged. The second is whether it existed in 2007 such that it was possible for there to have been a prior lawful disclosure of the information under it.
As to the first respect, its existence at the time relevant to the access application was accepted when the Tribunal considered the relevance and weight to be given to cl 6 of the Table. Therefore, there is force to the respondent’s submission that all that confirmation of its existence in 2007 could do is strengthen that position.
However, in the second respect, when the Tribunal was considering the position in relation to whether there had been a prior disclosure of the information (in 2007), which is relevant to public interest factors concerned with disclosing or revealing personal information (cll 3(a) and 3(b) of the Table), the Tribunal did not accept the appellant’s contention that the information had been previously lawfully disclosed by the respondent under s 257 of the CAS Act, on (at least in part) the wrong basis that that provision had not yet been enacted. Whilst the respondent contends that there is an insufficient basis in the evidence at first instance to find that there was a lawful prior disclosure, we are satisfied that had the error (the finding that s 257 did not exist at the relevant time) not been made, it could, realistically, have made a difference to the Tribunal’s decision in that regard. In circumstances where the Tribunal found that some information had indeed been publicly disclosed (at [147] of the first Decision) the Tribunal declined to infer that the information had been disclosed by the respondent under s 257 of the CAS Act, which the respondent’s witness “assumed” was the provision it would have been disclosed under, had it been disclosed by the respondent. The inference was “rejected” because the Tribunal erred in failing to apply s 257 of the CAS Act (at [149] of the first Decision). Whether there was a prior lawful disclosure could have affected the Tribunal’s consideration of the relevance and weight of the factors in cll 3(a) and 3(b) of the Table which in turn could affect the overall weighing exercise.
It follows from the respondent’s acceptance that the Tribunal erred in this regard, and our conclusion that the error is material, that Ground 4 must be allowed.
“The Tribunal erred in her approach to the evidence that any release of information in 2007 (concerning the Commissioner’s 2007 decision) complied with s 257 of the Crimes (Administration of Sentences) Act 1999 (NSW) because the Tribunal held that s 257 had not then been enacted (at [148]-[149]).”
The respondent opposes Ground 5 and rejects the appellant’s contention that the error is material in either the application and weight given to s 257 of the CAS Act (under cl 6 of the Table) in the balancing exercise, or in how the Tribunal considered the appellant’s argument regarding the alleged lawful release of the information in 2007. However, for the reasons just expressed in relation to Ground 4, we consider that the error, which is accepted to have occurred, could have made a difference to the weighing exercise and that there is a clear risk of injustice if the error is left to stand. Further, if leave is required, we would grant it for the reasons expressed in relation to Ground 3.
As the error concerning the existence of s 257 of the CAS Act at the relevant time is accepted, and as we consider it material, Ground 5 is allowed.
“’6. The Tribunal erred in finding that it was ‘likely that the (appellant) is the only party to the proceedings who would likely know the source of the information that he reported in 2007’ when no such evidence had been adduced (at [151], [143]).
- The Tribunal erred in holding that cl 6(1) of s 14(1) of the GIPA Act applied to the disputed information where information in the public domain could not have been disclosed for the purposes of s 257(1) of the CAS Act (at [147]-[153]).”
Despite the references to “no such evidence” which is indicative of a “no evidence ground”, we apprehend that these grounds challenge, generally, the fact finding of the Tribunal. Leave to appeal is therefore required. We consider each in turn.
The appellant contends that leave to appeal should be granted in respect of Grounds 6 and 7, as the errors in the first Decision involve “questions of mixed fact and law” or, in the alternative, demonstrate “an injustice that is reasonably clear” and that the Tribunal unreasonably arrived at factual errors that were “clearly mistaken”, citing Collins v Urban at [84].
“143 The available evidence is that in 2007, the applicant was the co-author of an article which reported that Ms Nasser was prohibited from visiting NSW Correctional Centres and that the reason for the ban was the “redirection of inmate’s telephone calls.”
…
151 I consider it likely that the applicant is the only party to these proceedings who would likely know the source of the information that he reported in 2007 and his evidence does not address this matter.”
By Ground 6, the appellant contends that the Tribunal’s finding that the appellant reported on the ban in 2007 was not open. This is because evidence of the reporting in 2007 was before the Tribunal, and none of the authors of those articles was the appellant. Furthermore, the appellant submits that the “balance of the reporting was not in 2007”; the appellant’s articles were written “in and from 2024”. The appellant also submits that the Tribunal’s finding at [151] of the first Decision was made “without notice or any supporting evidence and involved an impermissible onus on the applicant in GIPA Act proceedings” and could have been met with evidence.
The respondent agrees that the Tribunal’s reference to 2007 at [143] of the first Decision is incorrect, and submits that it is “apparent” from the other references of the Tribunal at [143] that the Tribunal is “correctly referring to” the appellant’s “reporting since 2024”. Therefore, so it is said, the finding at [143] is “substantially accurate”; as the words of [143] “demonstrate conflation at the level of expression but not cognition”. The respondent submits that the appellant has not explained how the Tribunal’s finding at [143] had a material impact on the Tribunal’s determination of the proceedings.
The respondent also agrees that the same error is present at [151] of the first Decision, but submits that the “Tribunal’s finding at [151] clearly means to refer to articles written by Mason, not that Mason knows the source of articles published in 2007 by other publications”.
The respondent submits that:
“the Tribunal was entitled to consider the evidence before it and draw reasonable conclusions from that evidence. The Tribunal was clearly satisfied that there was sufficient evidence before the Tribunal to demonstrate that the Secretary does not know the source, and that, of the two parties, Mason is more likely to. The Tribunal’s conclusion at [151] merely reflects this reasonable finding, founded in the evidence.”
The respondent submits that there was no “impermissible reversal of the onus” onto the appellant; rather, the Tribunal drew a “reasonable conclusion”.
Insofar as the issue of notice is concerned, the respondent submits that the appellant was “on notice from the Secretary’s material filed in the proceedings below of the Secretary’s position, among other things, that the information in the public domain was unsourced and therefore it was the respondent’s position that it was ‘merely speculative’”.
The respondent acknowledges that the appellant was entitled not to put on any evidence as to how the information entered the public domain. The Tribunal has not, so the respondent says, drawn a conclusion from the absence of appellant’s evidence; rather, the finding at [151] of the first decision is a “reasonable conclusion” drawn from the evidence before the Tribunal, “as the Tribunal is entitled to assess the evidence before it”.
The respondent submits that the appellant has not shown how this “error” could have materially affected the determination of the original proceedings, as the appellant does not address why the consideration in cl 6 should not have been applied, or should have been given less weight.
In reply, the appellant rejects the respondent’s characterisation of the Tribunal’s reasoning, regarding the timing of the appellant’s reporting and the sources of the information in 2007, as “substantially accurate”. The appellant submits that the Tribunal did not engage with the evidence put on by the appellant, but rather “blamed” the appellant for not disclosing the sources underlying other journalist’s publications in 2007. Further, the appellant submits that the materiality is, ultimately, to be found in the weight to be given to the consideration against disclosure.
In effect, the respondent accepts that the Tribunal erred when stating, at [143] of the first Decision, that the appellant was co-author of an article in 2007 that reported on the disputed information. However, this is with a heavy caveat. The caveat is that read in light of other aspects of that paragraph, the Tribunal conflated the various articles “at the level of expression but not cognition”. However, the express reference to an article co-authored by the appellant in 2007 (when there is no dispute that he did not) is not sufficiently tempered by references to other articles that have been published later to take away from the plain meaning of the finding. As to the finding of who authored the article reporting on the ban, we accept that the Tribunal erred.
Whilst we accept that the respondent’s construction is arguable, that at [151] of the first Decision the Tribunal is not erroneously saying that the appellant knows the source because he authored the articles, but rather is saying that as compared to the respondent he is the “only party” who would “likely” know the source, we do not consider in light of the error at [143] that that is the preferred construction.
Whilst we accept that the respondent put the appellant on notice that the information in the articles was unsourced and therefore speculative and not in the public domain, we do not consider that this ameliorates the effect of the Tribunal’s conclusion that the appellant was one of the authors of an article and likely knew (or could discover) the source.
Ultimately this goes to the question of whether the Tribunal was right to, in effect, reject an inference that the disputed information was publicly available.
The question of the source of the information affects the question of whether the information was verified or speculative. This in turn affects the question of whether the information was in the public domain, which is relevant to the balancing exercise required under s 13 of the Act.
We accept that this error is material. Leave to appeal is granted and Ground 6 is allowed.
“The Tribunal erred in holding that cl 6(1) of the s 14 (1) of the GIPA Act applied to the disputed information where information in the public domain could not have been disclosed for the purposes of s 257(1) of the CAS Act (at [147]- [153]).”
Ground 7 is brought either as of right or is said to justify the grant of leave.
To the extent that the ground speaks of the position where the information is already in the public domain, it raises a question of statutory construction as to whether it is possible to disclose, for the purposes of cl 6(1) of the Table and s 257 of the CAS Act, information that is already in the public domain. The Tribunal found (at [152] of the first Decision) that to be publicly disclosed, the information must be disclosed by the respondent.
Nevertheless, the respondent disputes a central premise of the ground: that some of the information, so far as is relevant, is in the public domain. The respondent maintains that mere repetition of information in publicly available documents is so vague, unverified and inconsistent as to be speculative. We consider that this ground raises mixed questions of fact and law.
As this ground raises important principles about the meaning of disclosure in cl 6 of the Table, leave to appeal is granted. The grant of leave is also supported by the outcome on the earlier grounds which relate, broadly, to the same issues.
“In any event, in Thomson, the Tribunal held that the words ‘publicly disclosed’ requires there to have been a prior disclosure of information to the general public and there is no evidence of disclosure to the general public by CSNSW.”
The two propositions said to arise from this are as follows:
That the Tribunal held there was no evidence of any disclosure to the general public at all.
That the Tribunal held there was no prior disclosure by CSNSW.
The appellant submits the first proposition is wrong because there exists a “vast body of public journalism” which constituted a disclosure to the public.
The appellant asserts that the second proposition is wrong in principle, as there is “no reason that there needs to be prior disclosure by the agency or officially”. Rather, there simply needs to be a prior disclosure to the general public. The appellant submits that this is all that Thomson v Commissioner of Police [2021] NSWCATAD 53 (Thomson) at [146] stands for. The natural and ordinary meaning of “disclose”, so it is said, is that information must be “made known” which means it must not be previously known, with numerous cases said to be authority for this, including Foster v Federal Commissioner of Taxation (1951) 82 CLR 606; [1951] HCA 18 (Foster); at 614-615; Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78 (Nasr) at [127] (there, also dealing with a secrecy provision); Insurance and Care NSW v FMM [2024] NSWCATAP 43 at [73], [78] (FMM).
The appellant submits that the Tribunal was called to evaluate the extent of information that was in the public domain. Section 257 of the CAS Act only applies where the information is “disclosed”, which the appellant submits requires the transfer of information to a person where that information was not already known. It is said that “[e]ven without seeing the documents, it is known that the Tribunal did not undertake that process”. This is because, for example, “a basic element” of the information withheld is the fact of the ban and its duration. The appellant submits that those facts “cannot be ‘disclosed’ because they are already known”. Accordingly, so it is said, the Tribunal “then had to accept that at least to that extent there could not be a breach of s 257 and therefore cl 6 of s 14 of the GIPA Act does not apply”. The appellant proffers various examples of information which could not have been “disclosed” for the purposes of s 257 of the CAS Act.
The respondent maintains that FMM*,* which considered the “distinct” concept of disclosure under the PPIP Act, and other cases that are authority for the general proposition that to “disclose” requires making something known that is not known, are not relevant to construing the meaning of “disclosure” under the Act or the CAS Act. In particular, the respondent notes that the application of s 257 of the CAS Act turns on whether the information was obtained in “connection with the administration or execution of this Act” (CAS Act, s 257(1)). This is said to show that the “crucial element is that the information is the official record of the performance of CSNSW’s functions, and not whether some unsourced and speculative information exists in the public domain”. Therefore, disclosure can be achieved even where the information is in a publication, if the source was not the respondent.
The respondent notes that this interpretation of “disclosure” accords with the Tribunal’s decision in Jamieson v Department of Justice [2019] NSWCATAD 173 (Jamieson), which affirmed the decision of the respondent to refuse to provide the access applicant, an inmate, full access to the mail log of his incoming/outgoing personal and legal mail over a specified time period. The original decision-maker found that cl 6(1) applied (at [14]). The Tribunal in Jamieson applied cl 6, finding that it was reasonably likely that full disclosure of the mail log to the applicant would amount to a “disclosure of information obtained in the execution or administration of the CAS Act and therefore contravene the prohibition on disclosure under s 257(1) of the Act” (at [72]). This was so even though the mail log in question was the applicant’s own mail log.
The respondent submits that the appellant’s interpretation of “disclosure” would lead to an absurd result if a secrecy provision ceased applying to information that was “allegedly leaked, inadvertently disclosed, subject to a data breach or otherwise disclosed unlawfully or inadvertently” or “[o]therwise in the public domain due to rumour or speculation”. The appellant’s interpretation would “greatly reduce the protections offered by the secrecy provision in s 257, greatly undermining its purpose”.
The respondent further submits that it is “not accurate to say that the information is already ‘known’” to the appellant or to the “‘world at large”. The information in the public domain is “vague, unsourced and inconsistent”. Therefore, release of the requested records would have the effect of “disclosing” information subject to the secrecy provision as it would “settle as fact” or “confirm” the “veracity of these vague and inconsistent reports in the public domain”. The respondent relies on Kessing v The Queen (2008) 73 NSWLR 22; [2008] NSWCCA 310 (Kessing*)**,* which concerned a former Australian Customs Service Officer’s appeal against conviction under s 70 of the Crimes Act 1914 (Cth) for disclosing an airport security report to two journalists under the general secrecy provision. In Kessing, the Court of Appeal is said to have acknowledged that confirmation of the accuracy of information already known to the journalists could constitute an offence under the secrecy provision.
The appellant distinguishes Kessing from the present case. Kessing concerns a different offence provision applying to an officer who “publishes or communicates” a fact or document which it is their “duty not to disclose”. The concept of “communicate”, the appellant submits, is different to the concept of “disclosure”. The appellant submits that “[a]ll that is established by Kessing is that questions of degree may arise in determining whether the contents of a document have been communicated”.
At heart, the appellant contends that the Tribunal erred in concluding that cl 6 of the Table had any relevance without first evaluating what information is in the public domain. This is said to be because there can be no disclosure of something already known, and therefore no disclosure and no contravention of the CAS Act to the extent that the information is in the public domain.
To the contrary, the respondent contends that:
whether there is a contravention of the CAS Act does not depend on whether there is a disclosure of something not known; and,
in any event, the repetition of information in articles does not establish that the information is known. The information is still vague, speculative and inconsistent and has not been verified or confirmed.
Whilst cl 6 concerns a disclosure of information under the Act, it is specifically concerned with disclosure of information that could reasonably be expected to constitute a contravention of a secrecy provision. For there to be a contravention of s 257 of the CAS Act, there must be a disclosure (not falling into one of the exceptions) as that expression should be interpreted under the CAS Act. Therefore, we must concern ourselves, first, with the meaning of the expression “disclosure” under the Act and under the CAS Act.
As the respondent submits, when interpreting a statutory expression, it is relevant to consider purpose. The objects of the CAS Act are as follows:
2A Objects of Act
(1) This Act has the following objects—
(a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,
(b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner,
(c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered,
(d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community.
(2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders.
(3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings.
The disclosure that s 257 is concerned with is the disclosure of “any information obtained, or to which the person otherwise has or had access, in connection with the administration or execution of this Act”. This indicates that the respondent is indeed the authorised source of the information, or at least one authorised source, depending upon whether a different exemption applies. The relevance of this is developed below.
The expression “disclosure” is not defined in the CAS Act. Accordingly, the general principles on the meaning of disclosure, as identified in Nasr are apposite. In Nasr, the allegation was that the keeper of the records of Waverley Local Court provided charge sheets containing information to a solicitor, contrary to s 13 of the Criminal Records Act 1991 (NSW) and s 18 of the PPIP Act. At [127] Campbell JA held (Beazley JA and Hodgson JA agreeing) that in the absence of “proof” or a “concession” concerning how much the solicitor knew of the information prior to obtaining the charge sheets, the Court was not satisfied that there was a contravention of s 13 of the Criminal Records Act or the PPIP Act. Both Acts required a “disclosure”. At [127], the legal principle was stated to be as follows:
“The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know.”
Whilst we accept that the CAS Act is concerned with information obtained through the administration and execution of that Act, we do not consider that that is an indication that allows us to depart from the general concept of disclosure, for the purposes of the meaning of disclosure within s 257. We are therefore satisfied that disclosure under s 257 of the CAS Act means to make known information that which was not previously known.
However, the question arises, how can information that falls under the umbrella of s 257 of the CAS Act be “known”. We consider that it can only be “known” if there has been disclosure of the information to the recipient of the information from an authorised source. One such authorised source is the keeper of the records. In this case, the respondent is an authorised source.
This conclusion is fortified when one considers that confirmation or verification may amount to a disclosure. We consider the position in Kessing to be analogous. As noted in Kessing at [33]:
“The purpose of [s 70(2) of the Crimes Act 1914 (Cth)] is to criminalise the unauthorised intentional disclosure of material that has come into a Commonwealth officer’s knowledge or possession by virtue of their office.”
“To confirm the accuracy of a document leaked by another to a journalist may be to communicate a fact, but in my opinion it is not to communicate the document.”
Therefore, if access to the information would confirm or verify the contents of information in articles which had not been authoritatively sourced, and was therefore not yet “known”, we accept that this would indeed amount to a disclosure for the purposes of the CAS Act.
We note that Jamieson is supportive of this conclusion, because providing access to the mail log was held to be reasonably expected to be in contravention of s 257 of the CAS Act, even though the applicant submitted that the information was, in one sense, known to him because it was his mail log and he was aware of who he had received mail from or sent mail to. In Jamieson, it appears the Tribunal was persuaded by the contentions of the respondent that there could be a disclosure of the “information obtained in the execution or administration of the CAS Act”. At [72] the Tribunal says as follows:
“I am satisfied that it is reasonably likely that full disclosure of the Mail Log to the applicant would amount to a disclosure of information obtained in the execution or administration of the CAS Act …”
Whilst the Tribunal in Jamieson did not expressly consider the authorities that support a conclusion that to disclose something, the information must be something not already known, the reference to “full disclosure” of the mail log suggests that there was indeed something to disclose that was not already “known” to the applicant.
We are satisfied that for the information to be “known” or in the public domain, in the sense that there could be no disclosure of it for the purposes of the CAS Act, the source of the information must be an authorised or verified source. Here, the respondent is an authorised source of information to which s 257 of the CAS Act applied, given the objects of that Act.
In terms of the appellant’s two propositions adverted to above, we consider that the Tribunal impliedly considered that the respondent was the only possible authorised source of information and without an authorised release of the information from the respondent there could indeed be a disclosure.
The appellant maintains that it was an error to find the respondent had not already authorised release of the information, for the reasons discussed in relation to Grounds 5 and 6. Ultimately, whether there was an error in the way the Tribunal approached determining if there would reasonably be expected to be a contravention of s 257 of the CAS Act, is tied to whether there was an error in the Tribunal not inferring that the respondent was the source of information in the articles.
For completeness, we briefly touch on the appellant’s first proposition adverted to above at [249]. Here, there may indeed be more than one authorised source of the information. Whilst there may be aspects of information in a record covered by s 257 of the CAS Act that only the respondent can make “known”, there may be other aspects that can be verified or confirmed by others. We are therefore not to be taken as saying that for all purposes of the s 257 of the CAS Act, the respondent is the only authorised source.
Ground 7 is allowed.
Grounds 8, 9, and 10 are also grouped together under the appellant’s grounds of appeal under the subheading “Personal information”.
We consider first Grounds 8 and 9, which are as follows:
“8. When considering the personal information contained in the documents the subject of the application, the Tribunal failed to identify and take into account any information already in the public domain (at [144], [145]).
- Where the Tribunal accepted at [158] that the disputed information had already been reported, it erred in holding that clauses s 14, 3(a) and (b) of the GIPA Act applied to the entirety of the disputed information (at [141], [146]).”
Although the appellant has identified in the Notice of Appeal that Grounds 8 and 9 require leave, in his submissions the appellant contends only that leave “may” be required.
With respect to Ground 8, the appellant contends that a critical process was not undertaken in considering the applicability of cl 3(a) of the Table – this step being the identification of whether the information is already in the public domain. The appellant contends that the Tribunal’s finding at [152] of the first Decision that “there is no evidence of disclosure to the general public by CSNSW” shows a misconstruction of the statute because it is “only explicable” if the Tribunal considered that official disclosure by an agency is required before the information is considered to be in the public domain. This is said to be wrong “in principle and in fact”, as the words “publicly disclosed” do not require official disclosure.
The appellant notes that there were two personal information considerations at play in the proceedings, cll 3(a) and 3(b) of the Table:
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—
(a) reveal an individual’s personal information,
(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,
“has the agency met its onus to prove that the information is still ‘personal information’ despite the public reporting of that information?”
The respondent contends that Grounds 8 and 9 require leave. The respondent opposes a grant of leave, contending that Grounds 8 and 9 merely reflect that the appellant disagrees with the outcome and seeks to reagitate the case below. The respondent further submits that the appellant, by these grounds, misconstrues the Tribunal’s reasoning and the matters before the Tribunal.
We consider that Grounds 8 and 9, insofar as they concern cl 3(a), raise the question of law of whether the Tribunal misconstrued the phrase “disclosure of the information could reasonably be expected to … reveal an individual’s personal information” by failing to exclude from its ambit information that is already in the public domain, irrespective of whether that information came from the respondent.
We accept that this is a question of law that arises on the appeal. This is because the respondent accepted that there was, at least, some information in the public domain; albeit the respondent maintains that this is not sufficient to take the information out of the realm of being reasonably expected to reveal personal information. The respondent contends that to take the information out of scope, the information must have been released by an authorised source.
To the extent that Grounds 8 and 9 raise questions of whether some information was released by an authorised source, whether the onus was discharged, or whether the information remains subject to cll 3(a) and 3(b) notwithstanding that some is in the public domain, we consider that leave to appeal is necessary. As these grounds are concerned with the meaning of key expressions under the Act such as disclosure and reveal, the grounds raise important points of principle. Further, we see that these grounds may be affected by conclusions in relation to the Tribunal’s decision not to infer that the respondent had earlier released some information. There is a clear risk of injustice if the Tribunal’s conclusion in this respect is left to stand without further consideration.
To the extent necessary, we grant leave to appeal on Grounds 8 and 9.
In respect of clause 3(a), the appellant notes that “personal information” adopts the definition in cl 4 of Sch 4 to the Act. The appellant submits that for both clauses, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. This definition also appears in s 4 of the PPIP Act.
The appellant submits at follows:
“57 However, the exceptions are different for each Act. There is no exception for information contained in a “publicly available publication” for the GIPA Act definition. That act accommodates information already in the public domain by using the verb “reveal” in Sch 4 (“reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure))”. For the PPIP Act, exception for information in a “publicly available publication” (including news articles). The same concept is also built into the concept of ‘disclosure’ in s 18 of the PPIP Act.
58 The onus on an agency in GIPA Act proceedings ‘includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual’s personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not’: Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40]; see also Pedestrian Council of Australia Limited v North Sydney Council [2014] NSWCATAD 80 at [61]-[63].
59 The words ‘publicly disclosed’ ‘require there to have been a prior disclosure of information to the general public’: Thomson v Commissioner of Police [2021] NSWCATAD 53 at [146] (RS [71]). No part of the test requires official disclosure (unlike, for example, the position with cabinet information).”
The respondent notes that “it is common ground that there is relevant personal information in the public domain”. Nevertheless, it is submitted that the appellant’s position “fails to recognise that information in the public domain alone is not sufficient to demonstrate that there has been a prior lawful public disclosure for the purposes of the definition of ‘reveal’”.
The respondent notes that, contrary to the appellant’s submissions, the tests under cll 3(a) and 3(b) are different; they are not built on the same “factual question”, and they do not apply in a similar manner. The end result of this is that even where information is in the public domain and therefore cl 3(b) does not apply, cl 3(a) may still apply based on its own distinct test. This is said to be supported by the fact that were the public interest considerations against disclosure in cll 3(a) and 3(b) to operate identically, there would be no reason that they would be separated into two public interest considerations.
Insofar as the test under cl 3(b) is concerned, the respondent submits that the test under cl 3(b) turns on the definition of personal information under the PPIP Act, which includes an exemption at s 4(3)(b) where information is available in a “publicly available publication”. The application of cl 3(b) is concerned only with whether the information is publicly available, without any regard to how it entered the public domain. Whereas the test under cl 3(a) is said to focus on whether there has been a prior lawful public disclosure of the information. The focus is on if, and how, the information was disclosed.
The respondent submits that the Tribunal correctly applied cl 3(b), as the respondent had acknowledged that some of the information is publicly available and therefore cl 3(b) does not apply to this information. The Tribunal only applied cl 3(b) to personal information not available in a publicly available publication (at [144] and [145] of the first Decision). The respondent also submits that the Tribunal correctly applied cl 3(a) and that the appellant’s interpretation of cl 3(a) is incorrect on the grounds that it ignores the concept of “lawful” and the appellant’s definition of “reveal” misconstrues the word “public”.
The respondent submits that, even if the appellant’s position that information in the public domain is sufficient to establish a prior “disclosure” is accepted, it is impossible, on the evidence in this case (of information in the public domain) alone, to establish whether this information was lawfully disclosed. This alone is said to be a sufficient basis to find that release of the disputed information under the Act “could reasonably be expected to reveal personal information” under cl 3(a). A reading of cl 3(a) which requires that the information be “public” only improperly narrows the requirement set out in cl 3(a) and incorrectly limits the threshold for prior lawful public disclosure. The respondent submits that this approach was categorically rejected by the Appeal Panel in Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 (Field).
In Field, the Appeal Panel said at [64]-[66]:
“64 In applying the GIPA Act, the focus is on access to information which is in the possession of the government and which is, usually, not otherwise available or readily available to the public. The issue here is not resolved by the consideration of the common law of privacy and its approach to intrusions that one is taken to have accepted by appearing in public. Such consideration is apt to distract from the construction of the GIPA Act in accordance with the ordinary principles of statutory construction. It is, in our opinion, an irrelevant consideration and the Tribunal below erred in having regard to it: at [78]–[81].
65 The issue is not whether footage could have been lawfully taken. It is whether access to footage actually taken and in the possession of government should be permitted, according to the regime laid down in the GIPA Act.
66 The approach adopted by the Tribunal below could lead to some striking results. Film or photographs of a most personal or embarrassing nature, in the hands of government, would be subject to disclosure simply because the actions occurred in the public domain. One example would be scenes of terrible injuries resulting from a road accident.”
The respondent also relies on the cases of Thomson and Woolley v Lismore City Council [2013] NSWADT 10 (Woolley) for the proposition that merely demonstrating that information is known to a recipient or in the public domain is not sufficient to establish a “prior lawful public disclosure”. In Thomson the Tribunal is said to have found that the applicant’s knowledge of some personal information was not sufficient grounds to find that the information had already been lawfully publicly disclosed (at [146]-[147], [149]). Further, in the recent decision of O’Sullivan v Commissioner of Police, NSW Police Force [2026] NSWCATAD 2 (O’Sullivan) at [69]-[73], after considering the contrasting approaches taken in those earlier cases, the Tribunal preferred the approach that an agency disclosing personal information to an applicant with knowledge of that information could still have the effect of “revealing” that information. The respondent submits that the appellant has not identified a basis for departing from the test outlined in those Tribunal cases.
Furthermore, the respondent seeks to distinguish between “knowing” a fact, and something less that knowledge; for example, “belief”. The respondent submits that “the recipient must have a high degree of certainty and specificity to be considered to ‘know’ the information”. The respondent relies on the cases of Foster, although not a case under the PPIP Act, and Nasr, as it is said that “on a broader principled level, both cases turn on the concept of information or a ‘fact’ already being ‘known’”. This is to be contrasted from “merely information existing with no known source or basis”.
The respondent also seeks to rely on R v Ritson; R v Stacey [2010] NSWDC 160 (Ritson), a case which concerned a criminal appeal of a conviction under s 62(1) of the PPIP Act, for the proposition that disclosure can occur where the disclosure is a “confirmation” of a fact “irrespective of what had been told” to recipient previously.
The respondent contrasts the position on disclosure of information, as drawn from the above authorities, to the appellant’s position, which relies “only on unsourced media reporting, comprising news articles containing inconsistent and unverified information”, in support of his argument that disclosure under the Act would not “reveal” personal information.
“(a) First, to only apply cll 3(a) and 3(b) to information that is not publicly disclosed or in a publicly available publication.
(b) Second, when evaluating the weight to be given to any (specific) information that is not captured by (a), to evaluate it by reference to the incremental release of information not in the public domain.”
The appellant submits that it is “ultimately a simple inquiry: has the agency established that release of the information would reveal information that has not already been publicly disclosed?”. The appellant submits that “it is for the agency to establish that the information has not entered the public domain”. That onus was not met, and the Tribunal did not then undertake the requisite evaluative process.
The appellant submits that, by this evaluative process, the Tribunal was required to identify which parts of the documents contained “personal information”, and which parts did not. The Tribunal is so required, because the Act operates on information and not at the level of documents. The appellant submits that such an exercise was not undertaken: the Tribunal held that “the disputed documents ‘contain’ personal information that is not publicly available, but failed to identify which parts of those documents contained personal information”. The appellant submits that “it must be” that “large parts” of the documents contained information that was publicly available, such as the fact of the ban, the duration and that Ms Nasser was deemed a security risk. This purported failure to identify specific parts of the documents that contained “personal information” had “the consequence that cl 3(a) and (b) were not applied with the specificity required by the GIPA Act”.
The appellant submits that in Thomson at [146] and Woolley at [88], the cases relied upon by the respondent, there was “no suggestion that official disclosure is required”. The appellant submits that O*’*Sullivan does not assist the respondent in this case, as that case is authority for the proposition “that it is insufficient that the applicant only knows the information”. The appellant distinguishes the case of Field, as whilst the appellant accepts that Field is authority for the proposition that events in public are not necessarily publicly disclosed, it “does not assist where there are publicly disclosed facts in widely circulated news articles” (emphasis in original).
The appellant submits that the case of Ritson assists the appellant, as:
“The ratio of Ritson is that information which had been stated in open court and placed on the transcript meant is [sic] no longer ‘personal information’ because it was in a publicly available publication (at [47]). That cannot assist the department, because the fact of Ms Nasser’s ban was in fact stated in open court…”
The first question is what do the expressions “disclose” and “reveal” mean for the purposes of clause 3(a) and 3(b) of the Table.
Under the PPIP Act, in essence “disclose” means making known to a person information that the person to whom the disclosure is made did not previously know: FMM at [71]-[80].
Under the Act, the following definitions found in Schedule 4 apply:
disclose information includes make information available and release or provide access to information.
Note.
See also the definition of reveal.
…
reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
“There is a public interest consideration against making information available if to do so could reasonably be expected to make personal information available that has not already been, lawfully, publicly disclosed.”
It is apparent that it is not sufficient to avoid a disclosure if the information might be known to the applicant in a general sense. This is consistent with the context in which the expressions are to be construed. Disclosure to an access applicant must be approached on the basis that it is disclosure to the world, as the agency cannot put limits on what the applicant can do with the information (s 73 of the Act), even though limits to the form of access can be imposed (s 74 of the Act).
Further, the mere fact that some information or similar information is in the public domain does not satisfy the stricture that the information must have been previously “lawfully” publicly disclosed. Whilst “official” disclosure is not required, there must be “lawful” disclosure. Further, as identified in Field, it is not sufficient for a Tribunal to “take it” from a series of articles or otherwise that the information has been previously disclosed.
Here, there are a plethora of articles with varying amounts of information. We accept that mere repetition does not demonstrate prior lawful disclosure.
Nevertheless, there was some suggestion that a client of the lawyer revealed some information about the ban in open court and the Tribunal accepted some aspects of the information had been revealed, such as the fact of the ban and the timing.
Further, as the information is held by the respondent, they may have been in a position to make an earlier lawful disclosure. This submission was the subject of earlier grounds.
Ultimately, these grounds are affected by the earlier grounds and should be allowed for that reason.
Whilst there was a dispute as to who held the evidential (as opposed to legal) burden to demonstrate whether there had been a prior lawful disclosure given that some information had been previously lawfully disclosed, we see that this is a matter that must be resolved by the Tribunal.
“10. The Tribunal erred in finding that:
(a) only ‘speculative’ information was in the public domain (at [158]).
(b) there is ‘no evidence of disclosure to the general public by CSNSW’ (at [152]).”
The ground requires leave, as it concerns factual findings made by the Tribunal.
The appellant submits that the Tribunal’s findings that only “speculative” information was in the public domain, and there is no evidence of disclosure by Corrective Services, are “wrong in fact and wrong in principle by requiring official disclosure of information before it no longer meets the definition of personal information”.
The respondent submits that the appellant’s position “does not correctly engage” with the concept of a prior lawful public disclosure within the meaning of “reveal” or “disclose” under the Act generally, and that the Tribunal’s findings at [158] and [152] were reasonably based on the evidence before the Tribunal.
Whilst couched slightly differently, we see that this ground is akin to those that have come before. To the extent that it duplicates earlier grounds, there is no utility in granting leave to appeal. However, we see that questions concerning whether the information in published articles are “speculative” is affected by the outcome on earlier grounds, including as to whether the Tribunal was correct to infer that the respondent had not previously released information.
For the same reasons as already identified, leave to appeal is granted and the ground is allowed.
“The Tribunal erred in finding:
(a) that the release of the disputed information, including the information that had been in the public domain, could reasonably be expected to cause reputational harm that may adversely affect Ms Nasser’s employment prospects and professional standing (at [159]).
(b) that the consideration in cl 4(d) should be given substantial weight (at [161]).”
The appellant states that “[t]he Appeal Panel will not reach ground 11 if grounds 1-3 are accepted”. The appellant nevertheless submits that it was “not open to place substantial weight on clause 4(d)”. The appellant submits that this ground requires leave, which ought to be granted, as the appellant had “no notice of the factual issue”.
The respondent submits that leave to rely on ground 11 should be refused, as it does not raise an issue of principle, question of public importance or injustice; rather, the appellant seeks to “reventilate” issues previously raised before the Tribunal. There is said to also be “little utility” in the Appeal Panel granting leave on this ground.
This ground indeed requires leave to appeal. For the reason that we have allowed the appeal in relation to Grounds 1-3, there is no utility in determining this ground. There is no warrant to grant leave on this additional ground where we have already accepted that the appellant should be given the opportunity to make submissions in relation to clause 4(d).
Leave to appeal in respect of Ground 11 is refused.
Grounds 1, 3, 4, 5, 6, 7, 8, 9 and 10 have succeeded and the appeal is allowed.
The convenient course is to remit the case to the Tribunal for reconsideration. As there was a contention of bias as against the Tribunal at first instance on the grounds of pre-judging the issues in dispute, even though we did not uphold it, we see that it is appropriate to remit to the Tribunal differently constituted.
As is the usual course in an appeal, we will make directions for the making of any application for costs and the lodging of submissions.
The orders of the Appeal Panel are:
Leave to appeal is granted on grounds 5, 6, 7 and 10 and, to the extent necessary, on grounds 4, 8 and 9.
The appeal is allowed.
The orders made by the Tribunal on 16 January 2026 are set aside.
The case is remitted for reconsideration by a differently constituted Tribunal.
If a party to the appeal wishes to make an application for costs, the following directions apply:
(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Appeal Registry any submissions and documents the costs applicant intends to rely on in relation to the application; (b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Appeal Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs; (c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Appeal Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent’s submissions and documents; (d) the parties are to include, in their written submissions concerning the application for costs, their views about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).
“1) The decision to be immediately pulled from the NSW Caselaw website while this application is being heard and decided.
- The Applicant to be put on notice that there is an application for non-publication on foot.
- Non-publication order under s 64 of the Civil and Administrative Tribunal Act over:
- paragraph 150,
- paragraphs 154–161 (including the full underline heading immediately preceding paragraph 154)
- the phrase ‘4(d)’ in paragraph 176”
The grounds for the miscellaneous application were, in essence, that the Tribunal’s reasoning in the identified paragraphs contained information for which the Secretary claimed an overriding public interest against disclosure, and the Secretary’s submissions on these matters were made before the Tribunal, confidentially, under s 107 of the Act. Therefore, publication of the Tribunal’s reasoning on this issue was inconsistent with the decision to affirm the Secretary’s decision to withhold the disputed information, and “renders redundant the affirmed decision”. For this reason, the Secretary noted that the publication of the paragraphs “appears to be an error”.
The Secretary initially sought an order under s 64(1)(c) of the NCAT Act, restricting some of the words used in the “Catchwords” section of the first Decision, as well as reference to specified cases in the “Cases Cited” section on the cover page of the first Decision. However, the Secretary ultimately submitted that an order under s 64 of the NCAT Act was “not required”, as one had already been made in the first Decision. Instead, the Secretary identified the “correct mechanism” to address the concerns as being a correction to the first Decision under s 63 of the NCAT Act (second Decision at [7]).
The Tribunal subsequently restricted the first Decision on Caselaw, until the miscellaneous application was determined. In the second Decision, the Tribunal refused the application (Order 1).
The Secretary lodged a notice of appeal on 27 February 2026, challenging that refusal. The Secretary also sought a stay of the publication of [150] and [158] of the first Decision, as well as Orders 2-4 of the second Decision which concerned the timetabling of a costs application. The stay was granted on 2 March 2026. Paragraphs 150 and 158 of the first Decision have since remained restricted, pending determination of the confidentiality appeal.
In further written submissions lodged subsequent to the hearing, the Secretary sought a further hearing be listed for further oral submissions. The Secretary submits:
the half-day hearing was not sufficient;
the confidentiality appeal was not dealt with in detail commensurate to the access appeal;
the grounds of the confidentiality appeal are complex; and
due to time constraints, the Secretary was not able to make oral submissions on the orders sought under s 64 of the NCAT Act, which are said to also be important and complex.
The confidentiality-respondent does not seek a further hearing of the matter.
The Secretary is correct to submit that, overwhelmingly, the hearing was taken up with oral argument concerning the Access Appeal. The arguments on the access appeal were many and highly nuanced.
Notwithstanding those submissions, we have decided not to hold a further oral hearing for the following reasons:
We have decided to allow the confidentiality appeal and preserve the position of the Secretary.
We consider that the parties’ written submissions, taken in combination with the oral arguments, are extremely clear.
The Tribunal is obliged “to facilitate the just, quick and cheap resolution of the real issues in the proceedings” (NCAT Act, s 36(1)).
“a. Ground 1: The Tribunal erred in its findings in Mason No. 2 at [20] as it did not properly consider the Misc Application as far as it related to Mason No. 1 [150], as the Tribunal erroneously reviewed and considered [105] (Mason No. 2 [19]).
b. Ground 2: The Tribunal erred in its findings in Mason No. 2 at [27] to [28] (as far as these findings relate to [158] of Mason No. 1).”
"a. That the Tribunal's decision in Mason (No. 1) be amended under s. 63(1) of the Civil and Administrative Tribunal Act 2013 ('CAT Act') by marking para. 150 and 158 "Not for Publication".
b. That pursuant to s. 64(1)(b) and (c) of the CAT Act, the publication and broadcast of para. 150 and 158 in Mason (No. 1) is prohibited.
c. Such further orders that the Appeal Panel sees fit and may be required."
The confidentiality-respondent submits that the Secretary requires leave, as the appeal concerns interlocutory orders, but that leave should be refused because it involves no point of principle or arguable injustice.
Further, the confidentiality-respondent submits that the appeal is against an evaluative decision (the decision to publish reasons in a particular form) which admits of more than one outcome. Accordingly, the Secretary must establish a House v The King error. The confidentiality-respondent submits that none arise.
Whilst this contention was specifically directed towards Ground 2, in relation to [158], we apprehend that it applies to both grounds of the appeal.
The Secretary submits that the decision in House v T**he King relates to appeals from discretionary decisions, whereas Ground 2 is not an appeal against a discretionary decision. This is because, under s 107(1) of the Act, the Tribunal had no discretion to disclose information subject to an overriding public interest against disclosure in its reasons for decision.
The Secretary submits that if House v T**he King does apply, the Tribunal’s error at [158] constitutes:
an error of legal principle, as the second Decision does not comply with s 107(1) of the Act;
a material error of fact, as the description given at [24]-[28] of the second Decision “does not accurately describe the contents of” [158] of the first Decision; and
“[o]therwise arrives ‘at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error has occurred’ (see: Webb v Secretary, Department of Communities and Justice [2023] NSWCATAP 213 at [33] and [34])”.
The principles in points 1 and 3 apply equally to Ground 1 as they do to Ground 2.
We do not consider that the principles in House v T**he King apply to the question of whether the Tribunal erred in relation to the form and contents of a written statement of reasons. Where a written statement of reasons is provided, s 62(3) applies: Brazel at [140].
Section 62(3) of the NCAT Act provides as follows:
A written statement of reasons for the purposes of this section must set out the following—
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal’s understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
A failure to follow s 62(3) may result in appealable error. However, notwithstanding that there may be myriad ways to comply with s 62(3), this does not, to our minds, mean that this involves the exercise of a statutory discretion.
Generally speaking, whilst there is latitude as to what a decision-maker puts in a written statement of reasons and while minds might differ on how much or how little is sufficient, there is no “discretionary decision” in the sense discussed in House v T**he King. The written statement of reasons provides the explanation for why the decision was made. Each word in a written statement of reasons does not represent a new decision, in the requisite sense, to include that word.
Nevertheless, here, the general situation is affected by the statutory proscription against the Tribunal disclosing information over which there is an overriding public interest against disclosure under s 107(1) of the Act. Here the error is said to be in disclosing, in the written statement of reasons for decision, the information for which the Tribunal itself found there to be an overriding public interest against disclosure. This is said to be contrary to s 107(1) of the Act. If House v T**he King error is required, we are satisfied that the grounds indeed raise it, for the reasons adverted to by the Secretary, as set out at [347] herein.
The Secretary contends that in the second Decision*,* the Tribunal did not properly consider the Secretary’s miscellaneous application in relation to [150] of the first Decision, stating the Tribunal mistakenly reviewed and considered [105] instead. This meant, so it is said, that the Tribunal did not properly consider the Secretary’s submissions on [150], or the contents of [150] itself.
The confidentiality-respondent considers this ground to be, in effect, an application under s 63(1) of the NCAT Act, the equivalent of the “slip rule”, and submits that leave to rely on this ground should be refused on the basis that the Secretary did not follow the “proper procedure” in making an application under the slip rule, by way of email to the Tribunal at first instance, but rather elected to lodge an appeal.
“Consideration
18 I make the following comments and findings in relation to the Miscellaneous Application:
Paragraph 150
19 In the decision published on Caselaw, paragraph 105 reads “[NOT FOR PUBLICATION]”. The obviously makes no reference to confidential evidence. While a confidential version of the decision was released to the respondent, this was not published or in any way released to the applicant.
20 I therefore refuse the application as far as it relates to para 150 of the published decision.”
The Secretary submits that the Tribunal's description at [19] accurately describes [105] of the first Decision, “indicating that this reference is not merely a typographical error, and rather that the Tribunal erroneously reviewed [105] instead of [150] when considering this element of the Miscellaneous Application”, in circumstances where the miscellaneous application did not concern [105] of the first Decision.
We note that one of the orders sought on the appeal is that the appeal panel, pursuant to s 63 of the NCAT Act, amend the first Decision to mark the relevant paragraphs “not for publication”. However, we accept, as the confidentiality-respondent submitted, that the appropriate course when making an application under the slip rule is not to file an appeal.
Section 63 of the NCAT Act relevantly provides:
63 Power to correct errors in decisions of Tribunal
(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.
“if the matter had been drawn to the [Tribunal’s] attention would the correction at once have been made?”
Whilst the circumstances described above might be amenable to an application under s 63(1) of the NCAT Act, an appeal is not an opportunity to make a request or application for amendment under the slip rule. Such a request or application ought to be made to the President or the presiding member (as identified in s 63(1) of the NCAT Act).
We refuse leave to appeal in relation to Ground 1, insofar as it is intended to be an application under the slip rule.
However, we do not consider Ground 1 to be limited to an application under the slip rule. Nor do we consider that the mere fact that an application under s 63 might have been made, is reason enough to refuse leave to appeal more generally in relation to Ground 1, when we otherwise consider leave is warranted. This is because the confidentiality appeal concerns more than merely a contention that could be considered under s 63. To have made an application under s 63 would not have obviated the need for the Secretary’s appeal.
Ground 1 also raises the question of whether there was a material breach of procedural fairness in the Tribunal failing to consider a material submission of the Secretary, namely that [150] ought to be restricted. Further, for the reasons advanced by the Secretary, on its face, it appears as if the Tribunal did indeed mistake the paragraph the subject of the application. We therefore accept that there is a clear risk of injustice if the second Decision is to stand.
We therefore grant leave to appeal on Ground 1.
The Secretary submits that the information contained at [150] of the first Decision discloses the contents and nature of information subject to an overriding public interest against disclosure. Therefore, it is also subject to an overriding public interest against disclosure, disclosure of which breaches s 107(1) of the Act and s 66(3)(b) of the NCAT Act.
The Secretary submits that whilst some of the information in [150] is drawn from the open and confidential evidence of Ms Goldie, the paragraph is also said to include information that reveals disputed information.
The confidentiality-respondent submits that [150] reflects open evidence. Furthermore, it is submitted that the same finding is said to have been made by the Tribunal at [149], whilst at [157] the Tribunal discusses an open finding about the fact of the ban, and that it arose from her conduct as a solicitor and interactions with CSNSW staff. The confidentiality-respondent submits that, contrary to the Secretary’s submissions, there is no public finding of the type that the Secretary is concerned with.
The open evidence includes (as extracted from [32(6)] of the first Decision):
“[Ms Goldie] understood that the OIMS entry was recorded on Ms Nasser’s visitor profile. OIMS is centrally accessible to all CSNSW staff and there is also evidence that the [Visitor Restriction Unit] held a file in her name, which was destroyed in 2023. As the file was destroyed, it is unclear what type of records it contained or whether any part of it may have been within the scope of the GIPA request.”
“149 However, I take notice of the fact that s 257 of the CAS Act did not exist in 2007 and I reject the proposition that the information relating to the Commissioner’s decision in 2007 was publicly released by his office under the terms of a provision that had not yet been enacted.
…
157 Based on the evidence received during the confidential hearing, I accept the respondent’s submission that disclosure of the disputed information could reasonably be expected to prejudice Ms Nasser’s legitimate business, commercial, professional or financial interests. The relevant records contain sensitive information relating to her conduct as a solicitor that resulted in the ban. The disputed information relates directly to her interactions with CSNSW staff in her professional capacity.”
The above-mentioned paragraphs, which are not the subject of this appeal and therefore remain in the published first Decision, refer to the following:
That there is an OIMS entry recorded on Ms Nasser’s visitor profile.
That the Visitor Restriction Unit (VRU) held a file in Ms Nasser’s name.
That the VRU file was destroyed, so it was not possible to determine if it held material responsive to the access request.
The Commissioner made a decision in 2007.
The relevant records contain information relating to Ms Nasser’s conduct as a solicitor that “resulted in the ban”.
Ms Nasser had interactions with CSNSW staff in her professional capacity.
The above propositions are a series of related but not expressly interlinked propositions that provide only vague information. For instance:
There was a VRU file in Ms Nasser’s name, but it has since been destroyed and it cannot be determined if it held any information responsive to the access request.
The Commissioner made a decision in 2007, but the details of that decision are not revealed.
Ms Nasser had some unspecified interactions with CSNSW staff.
The point set out at [371(5)] links Ms Nasser’s conduct with a ban. Even so, the conduct is unspecified and the nature of the ban and who imposed the ban is not specified.
The first sentence of the confidential version of [150] of the first Decision goes further.
We therefore accept that publishing the first sentence of [150] of the first Decision undermines the decision itself and discloses information which the Tribunal held should not be disclosed. Ground 1 is allowed to that extent. The confidentiality order over the first sentence of [150] is to be continued.
We do not consider that the second sentence of [150] suffers the same vice. It speaks only of what cannot be determined on the information before the Tribunal. That of itself does not reveal or disclose disputed information.
We will hear from the parties regarding the appropriate form of confidentiality order.
Ground 1 is allowed in part.
“The Tribunal erred in its findings in Mason No. 2 at [27] to [28] (as far as these findings relate to [158] of Mason No. 1).”
“27 Paragraphs 158 to 161 (inclusive) set out the Tribunal’s reasons for accepting the respondent’s arguments for non-disclosure of the disputed information to the applicant under the GIPA Act. Disclosure of this reasoning process is expressly required by s 62(3) of the NCAT Act and the content of these paragraphs does not disclose the disputed information to the applicant.
28 I therefore refuse the application as far as it relates to these paragraphs of the published decision.”
The Secretary contends that the Tribunal erred because the publication of [158] is “inconsistent” with the Tribunal’s decision in the first Decision to affirm the Secretary’s decision “that the disputed records should be withheld in full as they are subject to an overriding public interest against disclosure”.
The Secretary submits that the Tribunal at [158] discloses the contents and nature of the disputed records and material received in the confidential hearing. This is in circumstances where the Tribunal’s reasoning at [24]-[27] of the second Decision “acknowledges that disclosure of the contents or nature of the disputed records, or material received confidentially, would be inconsistent with the Tribunal’s Orders” in the first Decision. It is said that [158] “goes beyond an exploration of the applicable law” and sets out the contents or nature of the disputed records or material received confidentially. By the wording of [158], the Tribunal, as “an authoritative and official source” which has reviewed the disputed records, has “confirmed” what others might speculate comprise the contents and nature of the disputed information.
The confidentiality-respondent submits that [158] describes a general conclusion about the effect of the evidence without describing the information in issue. That is an appropriate open finding.
It is said that [158] “goes beyond an exploration of the applicable law” and sets out the contents or nature of the disputed records or material received confidentially. By the wording of the confidential version of [158] of the first Decision, the Tribunal, as “an authoritative and official source” which has reviewed the disputed records, has “confirmed” aspects of what others might speculate are the contents and nature of the disputed information.
Paragraph 158 of the first Decision sets out the Tribunal’s conclusion as to why certain information should not be disclosed. By so doing, it discloses the information. This ground succeeds.
The confidentiality order over [158] is to be continued. We will hear from the parties regarding the appropriate form of confidentiality order.
The orders of the Appeal Panel are:
Leave to appeal on Grounds 1 and 2 is granted.
The appeal is allowed in part.
Order 1 of the orders made by the Tribunal on 20 February 2026 is set aside.
The interim confidentiality orders made on 2 March 2026 are to continue, pending the Appeal Panel’s determination of the appropriate form of confidentiality orders.
Within 14 days after the publication of this decision, each party is to give the other party and the Appeal Registry a form of order regarding appropriate confidentiality orders in accordance with these reasons and any supporting written submissions.
If a party to the appeal wishes to make an application for costs, the following directions apply:
(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Appeal Registry any submissions and documents the costs applicant intends to rely on in relation to the application; (b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Appeal Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs; (c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Appeal Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent’s submissions and documents; (d) the parties are to include, in their written submissions concerning the application for costs, their views about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar
[2000] HCA 63
[2010] HCA 1
[2026] NSWCATAD 2
[2026] NSWCATAP 210
[1936] HCA 40
(2006) 80 ALJR 497
(2005) 225 CLR 88
(2018) 262 FCR 317
(2025) 308 FCR 1
(2000) 205 CLR 337
(1951) 82 CLR 606
(1936) 55 CLR 499
(2015) 255 CLR 135
(2008) 73 NSWLR 22
(1985) 159 CLR 550
(2010) 239 CLR 5312
(2024) 280 CLR 321
(1986) 162 CLR 24
(2014) 309 ALR 67
(2018) 264 CLR 541
(2004) 220 CLR 181
(2022) 276 CLR 80
(2015) 256 CLR 569
(1987) 9 NSWLR 446
(1981) 148 CLR 170
(1988) 164 CLR 350
(1991) 32 FCR 195
(1936) 56 CLR 221
(1991) 33 FCR 397
(2004) 223 CLR 575
(2010) 239 CLR 531