These reasons for decision need to be read in conjunction with the earlier reasons published on 12 April 2018 under citation: Park v Transport for NSW [2018] NSWCATAD 82, which I will refer to in these reasons as 'Park No 1'. The ultimate position of the Tribunal on the application can only be determined considering the reasons jointly. The proceedings relate to the applicant's request for specific information on the Sydney Light Rail project, under the Government Information (Public Access) Act 2009 (NSW) (the 'GIPA Act'). because nearly all of the remaining information in dispute on my assessment constitutes Cabinet information, the respondent's decision will be substantially affirmed.
[2]
Background
In the administrative decision under review the respondent refused to release the requested information on the basis that it was considered to be Cabinet information as referred to in cl 2 of sch 1 of the GIPA Act. Such material (as properly considered) has a conclusive presumption of an overriding public interest against disclosure.
In Park No 1, I determined that the respondents claim that there were reasonable grounds that the material was Cabinet information was (in respect of some of the information) not supported by the evidence. As a result the respondent has been required to produce the material to the Tribunal so that I can examine it in order to determine whether it is properly characterised as Cabinet material.
At a Directions hearing on 1 May 2018 the parties were invited to file any further submissions with the respondent also invited to file any further confidential / non - confidential evidence, in addition to receipt of the actual documents referred to in the orders.
The procedure for the Tribunal dealing with these issues is set out in s106 of the GIPA Act. The section provides:
106 Decisions about Cabinet and Executive Council information
(1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter.
(2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it.
(3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter.
(4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter.
(5) The Premier is a party to any proceedings on an application under this section.
The orders made in Park No 1, required the respondent to file the withheld information consistent with the provisions of s 106 (2). The purpose of these reasons is to set out the decision as to whether the material is Cabinet information (on the face of the documents) and provide an explanation consistent with the provisions of the Act and having regard to both matters of law and the submissions of the parties.
The initial approach as followed in decisions concerning reasonable grounds in Cabinet information claims adopt a principle confirmed by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]-[12]and this was noted in the matter of Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101, which dealt with similar issues to this current case. Senior Member Montgomery observed this procedural and legal approach to be taken by the Tribunal at [18].
The approach to be taken by the Tribunal
18. Each of the parties has provided written submissions and they are in general agreement in regard to the approach to be taken by the Tribunal. As the Respondent has noted, the procedure established by section 106 of the GIPA Act with respect to Cabinet information was recognised by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]-[12].
These proceedings relate to the release of information concerning the (Sydney) CBD and South East Light Rail project. These are one of a number of proceedings for administrative review concerning GIPA Act applications for information concerning this project. Some applications have been brought by media organisations and other applications have been made by citizens including parliamentarians. Due to a large amount of recent and continuing media concerning matters relating to the project, (including access to information about the project) the general community may understand that there is a high level of interest in information relating to the project. That observation may well be correct however it is not relevant to the current issue in these proceedings for the reasons that follow.
The current consideration concerns whether the remaining withheld information meets the definition of Cabinet information as defined in cl 2 of Sch 1 of the GIPA Act. The public interest considerations in favour of disclosure and balancing those against public interest considerations against disclosure do not enter the analysis of these reasons. That is because the second step which these reasons cover is a determination as to whether the actual information is Cabinet information. Only if I find that some or all of the information is not Cabinet information do the considerations and balancing of the competing interests referred to above come into play.
The respondent has requested that should I arrive at such a position (that information is not Cabinet information) then they should have the opportunity to be heard (in both open and closed session) on the secondary arguments concerning the public interest considerations against disclosure. Due to the conclusion of these reasons, that step will not be necessary.
These proceedings concern an analysis in camera of information for the purpose of determining whether it meets certain criteria, specifically the Cabinet information definition.
[3]
Further evidence and submissions
The respondent relied on the confidential documents as well as confidential submissions to set out why the remaining information should be withheld from the applicant and as a result the public. This material was considered effectively in camera, due to this current determination being made on the papers. However in my view it is necessary to provide these reasons and my analysis as 'open reasons'.
The applicant did not file any further material but relied on their written and oral submissions from the initial hearing.
Often it is necessary to provide both an open and a confidential set of reasons for decision. The reason being is that it is not permissible for reasons to divulge the information for which the respondent's claim is made, even if part or all of that information is ultimately ordered for release by the Tribunal. The statutory basis for such caution is located in s 107 of the GIPA Act which provides:
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.
However I have already decided that whilst I must follow section 107 of the GIPA Act, there is no requirement for confidential reasons unless open reasons would somehow breach s 107 (1). I believe that it is both practical and in the interests of open justice to provide one open set of reasons in this matter.
The following definition is the relevant definition upon which the information is analysed.
2 Cabinet information
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as Cabinet information) contained in any of the following documents:
(a) a document that contains an official record of Cabinet,
(b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet),
(c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given),
(d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions,
(e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,
(f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e).
(2) Information contained in a document is not Cabinet information if:
(a) public disclosure of the document has been approved by the Premier or Cabinet, or
(b) 10 years have passed since the end of the calendar year in which the document came into existence.
(3) Information is not Cabinet information merely because it is contained in a document attached to a document referred to in subclause (1).
(4) Information is not Cabinet information to the extent that it consists solely of factual material unless the information would:
(a) reveal or tend to reveal information concerning any Cabinet decision or determination, or
(b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet.
(5) In this clause, Cabinet includes a committee of Cabinet and a subcommittee of a committee of Cabinet.
[4]
Consideration on approach to documents
Before analysing each document I believe it is necessary to set out the approach that I will take to the interpretation of the term 'documents' both as it appears in the GIPA Act generally and specifically and in Sch 1 cl 2 of that Act.
Often the proposition is put to the Tribunal that it is only the Cabinet 'information' that needs to be withheld and that the balance or residue of the document can be given out. I note that the GIPA Act generally refers to the term 'information' when referring to government or Crown data. That Act itself contains the term 'information' as do the chapeaus to many of the sections. References to 'Government information' and 'excluded information' are referred to in the interpretive provisions of the Act at Sch 4.
Clause 2 of sch 1 defines the term 'Cabinet information' and refers to information contained in certain documents. (See [16] above).
In the case of Nicholls v Transport for NSW (No 2) [2018] NSWCATAD 89 I recently dealt with this issue. At paragraphs [31] - [39] I note the following observations and findings:
31. In respect of the detailed submissions by both parties as to how I should construe the meaning of the term 'document', I observe the following.
32. At paragraph 16 of the applicant's written submissions of 14 July 2017 the following is argued:
16. Even if the Tribunal disagrees, and considers that the decision of the first respondent to withhold the financial information on the bases put forward to be correct in all the circumstances, no consideration appears to have been given by the first respondent to the possibility of redacting any commercially sensitive figures or data, but allowing the applicant access to the balance of the Document.
33. The applicant then submits that such an approach would be more consistent with the general public interest in disclosure as per s12 and the objects of the GIPA Act.
34. The respondent submits that such an approach is impermissible when having regard to the 'reasonable grounds' preliminary approach as provided in s 106. Such an approach is available only if the matter proceeds to the further stage of determining the correct and preferable decision on the information.
35. I accept the submission of the respondent and in addition note that the language in Sch 1 cl 2 refers to documents rather than the term 'information'. Information under the GIPA Act concerns the further stage for release of material outside of the information for which there is a conclusive presumption of overriding public interest against disclosure, but has no part to play in cl 2 other that the term 'Cabinet information' which is defined in the clause explicitly as 'documents' rather than 'information'.
36. Unfortunately, as the Cabinet claim is the preliminary and paramount position of the decision under review, the Tribunal is guided by the ordinary meaning of the term 'documents' rather than 'information' in this consideration. Consistent with the reasoning set out in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 by Brennan CJ, and noting the provisions of the Interpretation Act 1987 in my view the term document clearly extends to the types of examples in cl 2 (which deals with Cabinet information). All of those examples in subclauses (1) (a) to (f) inclusive are in my view documents.
37. Whilst some of those documents may completely contain the relevant material such as:
(b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet),
other documents may contain minimal material which would as 'information' be defined as Cabinet material.
38. The following is an example of the later observation:
(d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions,
(e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,
39. I note that subclause (e) was an active ground in these proceedings. For the above reasons I find that the entire document must be withheld.
There is further authority for defining the interplay between the terms information and documents in the following observations of the Appeal Panel in the appeal of the D'Adam decision. In D'Adam v New South Wales Treasury and the Premier of New South Wales [2015] NSWCATAP 61the following is stated in respect of cl 2 (1) (b).
60. We are persuaded by the construction contended by the appellant. In our view, it is clear from the language of cl 2(1)(b) that the information protected is the information contained in "a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration" [emphasis added]. As stated by the appellant at para [20] of his written submissions in the appeal,
The word "its" can only refer to the "document". Therefore, for clause 2(1)(b) to operate, the document containing the information must have been submitted or prepared for submission to Cabinet. In turn, the "information" referred to in the chapeau must be contained within that document. Had the legislature intended the protection in clause 2 to cover information appearing in documents other than those referred to in clauses 2(1)(a)-(e), it would have been expected that the clause would refer (relevantly) to "information prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration".
61. We agree with this submission and reasoning.
62. The respondents contended, and we agree, that the accepted approach to statutory construction begins and ends with the text of the Act. We however come to a different conclusion about the construction of Sch 1, cl 2(1)(b) to that contended by the respondents. The respondents noted that there had been a change under the GIPA Act regime to focus on information rather than documents. They contended that to give this change "work to do" the conclusive presumption must focus in the information being prepared for the dominant purpose of submission to Cabinet. However, this change when properly understood, was intended to focus on the broad range of information that may be available, such as electronic or digital data, not just documents. In our view, the clear meaning of cl 2(1)(b) is that the information is contained in a document prepared for the purpose of the document being submitted to Cabinet, not the information being submitted to Cabinet [emphasis added]. To interpret cl 2(1)(b) otherwise would be to strain the ordinary meaning of the phrase.
It therefore follows, that documents submitted to Cabinet in a broad sense attract the traditional 'Cabinet exemption'. However the concept of 'information' is the trajectory that any GIPA process must follow both in an application and a release of data responsive to an application.
[5]
Documents in Proceedings: 2017/00069686
Document 1.2 concerns an external report which summarises the key differences in between the City South East Light Rail (CSELR) Business case and two Private Public Partnership (PPP) bid offers.
The pages of Document 1.2 are marked Cabinet in Confidence. Attachment 'G' to Cabinet minute SC497-2014 is almost identical to Document 1.2. Document 1.2 has a slightly different date, the PPP entities are given a different identifier. Part of the above Cabinet Minute is identical to part of 1.2.
The differences are essentially to some of the figures (only a small variation of the minority of the calculations). The rest of the document is virtually identical and appears to have been prepared and then updated or 'refreshed' some days later with up to date numbers as the attachment to the Cabinet Minute.
I am satisfied that on this basis the document meets the criteria of Cl 2 (1) (a), (b) (c ) (e) and (f) of Sch 1 of the GIPA Act and as a result constitutes Cabinet information.
Document 2.3 is identical to document 1.2. and attracts the same findings as a result.
Document 2.7 constitutes minutes from the Sydney Light Rail Advisory Board (SLRAB). I note that the respondent submits that Mr Finlay's evidence concerning the trajectory of the board minutes going to the (departmental) Secretary and then the Minister was unchallenged. I infer this to mean that in the context of a GIPA review whereby a respondent agency puts their case, exculpatory evidence is not available to an applicant to in effect challenge an agency's evidence in the absence of the agency putting on further evidence (e.g. calling another witness, or a further statement maker).
The document contains the Public Sector Comparator (PSC) tool / result, and I note that the Cabinet minute SC471-2014 makes reference to the relevant PSC. I am satisfied that Item 3.1 of the Minutes is conveyed in item, 6.20 and 6.21 of the Cabinet minute SC471-2014. Whilst the information contained within those items appears of no probative value (as it discloses developments and progressions rather than any factual details), the observation is otiose. This is because the respondent has sought to rely on cl 2 of the Schedule and submitted that the information is Cabinet information.
I am therefore satisfied that cl 2 (1) (e) and (f) are enlivened and the document constitutes Cabinet information.
Document 2.8 are also minutes from the SLRAB. The respondent submits that there are reasonable grounds that this document reveals the position that the Minister has taken in Cabinet, and was recommended to take, regarding the status and direction of the project, including an update to both budget and the PSC. Similar grounds as those set out for document 2.7 at [28] above apply to this document concerning items 6.20 and 6.21 of the minute. Interestingly there is again very little probative information in that portion of the document (item 6 of the SLRAB minutes) other than the figures at 6.1 and 6.3 of those minutes, but due to the operation of the Cabinet information clause, the prohibition applies to the whole of the document.
I am therefore satisfied that cl 2 (1) (e) is enlivened and the document constitutes Cabinet information.
Document 2.9 are also minutes of the SLRAB. Similar observations and insights arise from the contents of this document and references to information in Cabinet minute SC471-2014 as those in documents 2.8 and 2.7. I note the figures endorsed by the SLRAB were ultimately taken to Cabinet at items 2.1, and 6.9 of the minute.
I am therefore satisfied that cl 2 (1) (e) is enlivened and the document constitutes Cabinet information.
Document 2.11a is a SLRAB paper and was tabled at a SLRAB meeting and is marked 'Cabinet in confidence' as well as other classifications. The purpose of the paper was to seek the Board's endorsement of the updated PSC.
The document is claimed to reveal the position that the Minister was taking to Cabinet in respect of whether there was a need for an update of the PSC for the SLR project. The actual position concerning the import and relevance of the information is set out in the redacted paragraphs of Exhibit R-2 in the initial proceedings.
In my view the matters outlined above in respect of document 2.7 and Cabinet minute SC471-2014 apply to the information in part of this document. I am therefore satisfied that cl 2 (1) (e) is enlivened and the document constitutes Cabinet information.
Document 2.11b is an updated PSC for the SLR project. It is an attachment to document 2.11a (above). The respondent submits that the information in sections 1.4, 1.5, 1.6, and section 11 of the documents is summarised in Document 2.11a and for that reason the arguments in respect of Document 2.11a apply to Document 2.11b.
I note that the document is 55 pages in total and that the information relied upon for the Cabinet claim is a small portion of the total information. However because of the reference to the term 'document' in cl 2 of the Schedule, if any of the information within the document is captured by the definition then the entire document is captured.
I am therefore satisfied that cl 2 (1) (e) is enlivened and the document constitutes Cabinet information.
Document 2.11c is a PowerPoint presentation. The respondent submits that this is a document which substantially covers the same territory as Documents 2.11a and 2.11b. On an analysis of the PowerPoint slides it is clear that they disclosure similar information to that contained within many of the documents above. Exhibits 'R-2' and 'R-4' from the initial proceedings make reference to these documents being in a context of the SLRAB. Even though the PowerPoint document is an early iteration of the information claimed as Cabinet information, the provenance of the information / material is both consistent with document 2.11b (on the face of the document) and appears broadly contemporaneous to Document 2.11b.
On the basis of the above and the grounds referred to in respect of documents 2.11a and 2.11b, I am satisfied that cl 2 (1) (e) is enlivened and the document constitutes Cabinet information.
Document 2.12 This document is the SLRAB Board Paper for the meeting which is minuted by document 2.9. It appears evident that the business or board papers showing significant detail (74 pages) of material would fall into the same assessment rating as the minutes of the meeting where that business was transacted. I have identified in the documents sufficient examples of information (in both content and context), that are identified in the relevant Cabinet minute.
In addition the documents at pages 21-44 of Document 2.12 are identical to one of the attachments to Cabinet minute SC497-2014. This analysis also has the effect of capturing the entire document.
For those reasons I am satisfied that cl 2 (1) (e) and (f) are enlivened and the document constitutes Cabinet information.
Document 2.14 This document is the business papers for the Board meeting the month prior to those covered in Document 2.12 which is minuted by Document 2.8. I note my comments at [43] above concerning the interplay between the status of the information in the business papers of a meeting and the meeting minutes themselves.
Reference is made in item 6.20 of Cabinet minute SC 471-2014 and item 2 (ii) of Cabinet minute SC497-2014 to specific matters referred to in Document 2.14.
On the basis of the above and the grounds, I am satisfied that cl 2 (1) (c) and (e) is enlivened and the document as a result constitutes Cabinet information.
On the basis of the above findings, in respect of proceedings 2017/00069686, the decision of the respondent will be affirmed as all of the outstanding information is Cabinet information for which there is a conclusive presumption against release under the GIPA Act.
[6]
Documents in proceedings 2017/00129838
Document 2.15 (a) This document is a four page graphic / slide representation of various data sets being the PSC, and associated material. The document arises from an e-mail attachment received by the respondent agency in the account of the then Chief of Staff to the Minister. The email is apparently marked 'Cabinet in confidence' but the attachment is not.
The respondent submits that the covering email asks whether the attachment can be provided to the DPC as requested. Whilst the e-mail does not actually use those words, (merely that DPC would like a copy and an implied permission sought), in my view the import is the same. The respondent submits that this illustrates the intended use or reasons for creation of the document.
This document contains the key summaries about the cost and summary of the CSELR referring specifically to the PSC and the Benefit Cost Ratio (BCR). The information is reflected at various times in cabinet minutes, SC 471-2014 and SC 497-2014.
On my assessment of the relevant Cabinet minutes and the document, I conclude that some of these matters were taken to Cabinet and some of the matters were prepared for the Minister to take, or was considering taking to Cabinet.
On the basis of the above and the grounds, I am satisfied that cl 2 (1) (e) is enlivened and the document as a result constitutes Cabinet information.
Document 2.16a comprises two e-mails and one attachment. (The first email did not include the attachment so a subsequent email was sent). The Document appears to be speaking notes to the slides identified at Document 2.15a. (A very small copy of the slides appears in the corner of each page of the document).
There appears to be a relationship between documents 2.16 and 2.15a and this document. The respondent submits that their submissions on Document 2.15a apply equally to this document, that is that disclosure would reveal or tend to reveal the position that the Minister for Transport would take, was considering taking or had been recommended to take on these matters in Cabinet.
Looking at the purpose and content of the document (to supplement Document 2.15a) it is evident that the same arguments apply to this document.
On the basis of the above and the grounds, I am satisfied that cl 2 (1) (e) is enlivened and the document as a result constitutes Cabinet information.
Document 2.20 is the email which attaches Document 2.20a. The email itself does not appear to disclose any information but discusses how the attachment (information) might be broken down into a more easily understood format. However I believe that the second paragraph does convey information concerning the position being considered (at relevant stages) by the Minister - even if the actual detail of that position is not disclosed.
On the face of the document clauses 2 (1) (e) and (f) appear to be enlivened. This was the case in respect of Park No 1 whereby it was one of the documents for which the Cabinet claim had been made, and for that reason it formed part of the orders in those proceedings. However I note that this position appears to have changed. The respondent's position now appears that in respect of the e-mail of 13 October 2014 in their submissions whereby they state that: 'a Cabinet information claim is not made' (in respect of the email dated 13 October 2014). Whilst the information might be considered Cabinet information (concerning paragraph 2) I note that as the claim is not pressed, the information (e-mail - document 2.20) can be released.
Document 2.20a is in effect the document (attached to the email at 2.20) which Cabinet considered when deciding which bidder to proceed with in respect of the project. The detailed attachment includes a recommendation as to which proponent Cabinet should approve for the project. Much of the information within the document constitutes material which would meet the definition / criteria of Cabinet information (as set out in the GIPA Act).
In my view it is clearly a document containing a recommendation from the Minister for Cabinet's consideration. .
On the basis of the above, I am satisfied that cl 2 (1) (b) and (e) are enlivened and the document as a result constitutes Cabinet information.
[7]
Further consideration
At paragraphs [9] - [12] above I set out the contemporaneous general public context of the information in question in these proceedings contrasted with how these proceedings must be considered. In many instances GIPA disputes for administrative review involve competing arguments. As I have previously mentioned, those arguments are not considered in any manner in these proceedings because of the conclusive presumption against disclosure argument available due to the drafting of the GIPA Act.
Senior Member Walker sets out a possible basis for this provision and how the weighing of the arguments consistent with merits review is not enlivened in the Cabinet consideration process. In D'Adam v New South Wales Treasury [2014] NSWCATAD 68 at [45] - [47] the following is observed:
45. No doubt in recognition of Cabinet's role and functioning as a collective, indirectly elected executive branch of government, s 106 establishes a special and very different decision-making matrix for claims to the Cabinet information presumption. Not only is the tribunal "limited to deciding whether there were reasonable grounds for the agency's claim", but it is explicitly "not authorised to make a decision as to the correct and preferable decision on the matter" (s 106(1)). The tribunal's task is thus not to investigate the claim de novo or to engage in normal merits review. Its function is more analogous to that of a court undertaking judicial review.
46. In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". "Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them".
47. The respondent bears the onus of establishing that it had reasonable grounds for the claim (s 105(1)) and it must do so on the balance (meaning preponderance) of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, [65][2004] FCA 143; , 208 ALR 73, 86.
In my view this analysis goes some way to explain the state of affairs as to why Cabinet material is to be considered differently to other information under the GIPA Act. This is consistent with the other observations made by Senior Member Walker in the cases referred to at paragraphs [41] - [44] of D'Adam when reviewing the role and status of Cabinet.
[8]
Conclusion
Based on the reasoning and findings predominantly set out at paragraphs concerning the individual documents, the decision of the respondent must be confirmed. Only in respect of document 2.20 will that decision be formally set aside, irrespective of whether in practice that document was no longer pressed between the parties.
The following orders will dispose of the remaining elements of both sets of proceedings.
[9]
Orders
1. In proceedings 2017/00069686 the decision of the respondent is affirmed in respect of documents: 1.2, 2.3, 2., 2.8, 2.9, 2.11a, 2.11b, 2.11c, 2.12 and 2.14.
2. In proceedings 2017/00129838 the decision of the respondent is affirmed in respect of documents: 2.15a, 2.16a and 2.20a.
3. In proceedings 2017/00129838 the decision of the respondent is set aside in respect of document 2.20.
[10]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 June 2018