Patrick v Secretary, Department of Communities and Justice & Premier of NSW

NCAT Administrative and Equal Opportunity|2024-09-23

REASONS FOR DECISION

Rex Patrick made an application under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to information held by the Department of Communities and Justice (the Department). The information sought was: The brief utilised by Ms Simone Czech on 4 March 2024 at the hearing of the NSW Legislative Council's Portfolio Committee No 5 - Justice and Communities insofar as the brief material relates to child protection matters.
Ms Czech is a Deputy Secretary of the Department. The brief was identified as the "House Folder Notes - Minister Washington" referred to by her at the hearing of NSW Legislative Council's Portfolio Committee No 5 - Justice and Communities on 4 March 2024 (March 24 Budget Estimates). The March 24 House Folder Notes comprised 80 individual documents relevant to the Families and Communities portfolio, 21 of which related to child protection matters and thus within the scope of the access application.
The Department refused to grant access to the information requested on the basis that there is an overriding public interest against disclosure of the information. That overriding public interest against disclosure was held to be conclusively presumed on two grounds: 1. because the requested information is Cabinet information within the meaning of cl 2(1)(c) of Sch 1 to the GIPA Act (the Cabinet information claim); and 2. because the public disclosure of the requested information would infringe the privilege of Parliament within the meaning of cl 4(c) of Sch 1 to the GIPA Act (the parliamentary privilege claim).
Mr Patrick seeks review of the decision and disputes both the Cabinet information and parliamentary privilege claims. At the first case conference before the Tribunal it was determined that the challenge to the claim of Cabinet information should be dealt with first. This decision therefore addresses the Cabinet information claim only.

Material before the Tribunal

The Department relies upon an affidavit of Chloe Ware affirmed on 6 August 2024. Ms Ware also gave evidence at the Tribunal hearing and was cross examined by Mr Patrick.
Mr Patrick has provided a document titled "Witness statement of Rex Patrick" dated 26 August 2024. The brief statement attaches a collection of documents relating to Cabinet documents and Parliamentary Committees.
Mr Patrick and the Department provided written submissions and made further oral submissions at the hearing.
The Information Commissioner exercised his right to appear and be heard in this matter under s 104(1) of the GIPA Act, but ultimately did not take an active part in the proceedings.

The GIPA Act

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. Under the GIPA Act a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an "overriding public interest against disclosure": s 9. There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure
In this matter, it is the first situation that is relevant as the issue is whether there is a conclusive presumption against disclosure as the information is Cabinet information. Clause 2 of Sch 1 deals with "Cabinet information and relevantly provides: 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 the 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) ... (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).
Clause 2(5) makes clear that "Cabinet" includes a committee of Cabinet and a subcommittee of a committee of Cabinet. There are several exclusions to what is held to be Cabinet information. Information contained in a document is not Cabinet information if public disclosure of the document has been approved by the Premier or Cabinet (cl 2(2)(a)), or if 10 years have passed since the end of the calendar year in which the document came into existence: cl 2(2)(b).
In addition, cl 2(4) provides that information is not Cabinet information to the extent that it consists solely of factual material, unless the information is contained in a document that, either entirely or in part 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.

Role of the Tribunal

A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision to refuse to provide access to information in response to an access application is a reviewable decision for the purposes of the GIPA Act: s 80 (d). Generally speaking, the Tribunal's review jurisdiction under the ADR Act is merits review and the Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision. The Tribunal may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination. Review of decisions under the GIPA Act where it is claimed that the withheld information is Cabinet information is, however, circumscribed.
Section 106 of the GIPA Act sets out a particular decision making process for claims concerning Cabinet information (and Executive Council information as set out in cl 3 of Sch 1). Section 106 states: (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 Sch 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 regime set out in s 106 means that the Tribunal's task is "not to investigate the claim de novo or to engage in normal merits review": D'Adam v New South Wales Treasury [2014] NSWCATAD 68 at [45]. The effect of s 106(1) of the GIPA Act is to exclude the operation of s 63(1) of the ADR Act, unless and until such time as the Tribunal rejects an agency's claim that the information is Cabinet information, pursuant to s 106(3) of the GIPA Act: Searle v Transport for NSW [2017] NSWCATAD 256 at [31].
In accordance with s 106, the Tribunal is required to engage in a tiered process with the first step being to decide whether there are "reasonable grounds" for the agency's claim that the documents are Cabinet information. The words "reasonable grounds" are to be given their ordinary meaning and it will usually not be helpful to paraphrase the term: McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423. A determination of whether there were reasonable grounds for a claim "involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue": Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6 at [26] with reference to McKinnon, at 430.
As was stated in Searle at [38], the Tribunal is to apply an objective test and determine whether the facts and circumstances would induce in the mind of a reasonable person a positive inclination towards acceptance of the claim which, in this case, is whether the documents are Cabinet information.

The issue

The issue in this case is whether there are reasonable grounds for the Department's claim that the House Folder Notes constitute Cabinet information within the meaning of cl 2 Sch 1 of the GIPA Act. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency (s 105(1) of the GIPA Act) and it must do so on the balance (meaning preponderance) of probabilities. The Department has thus provided evidence going to that issue, being the affidavit of Ms Ware. Ms Ware is the Director, Ministerial and Parliamentary Services and Cabinet at the Department and is responsible for the coordination and delivery of cabinet and parliamentary processes across the Department's portfolio of agencies.
Ms Ware states that House Folder Notes are prepared by staff in NSW government departments and agencies to prepare their responsible Ministers to answer questions during Question Time in Parliament, or to prepare Ministers or departmental or agency officials to answer questions when appearing at Budget Estimates hearings. She states that within the Department House Folder Notes are kept confidential and access is limited.
In relation to the preparation of the March 2024 House Folder Notes, Ms Ware states that on 25 January 2024 she received an email from The Cabinet Office requesting that briefs for the upcoming Budget Estimates hearings in February and March 2024 be provided in hard copy and electronic copy to The Cabinet Office by particular dates. The brief for the Families and Communities and Disability Inclusion portfolios, to which Mr Patrick's access application relates, was due to The Cabinet Office by 3pm on 28 February 2024, for a hearing before on 4 March 2024 before the Expenditure Review Committee (ERC). The email stated: In accordance with previous practice, all Budget Estimates briefs prepared for Ministers and agency officials are to be submitted to Cabinet or a Cabinet Committee for consideration and approval. It is important briefs are submitted on time so the relevant Cabinet or Cabinet Committee can consider and approve them prior to the hearing.
At the hearing Ms Ware said that the email was a form email and set out the usual process for Budget Estimates which had been followed by successive governments. The email referred to "the Budget Estimates resolution" but Ms Ware said that this was not in fact attached. She at first suggested that the resolution was a resolution of The Cabinet Office but later stated that it was the resolution of the Legislative Assembly relating to Budget Estimates hearings.
On 21 February 2024 Ms Ware received a further email from The Cabinet Office advising that the notes previously due for consideration by the ERC on 29 February 2024 would proceed to the Strategy Committee of Cabinet on 28 February 2024. The email repeated the sentence set out in the previous paragraph about the importance of briefs being submitted on time so the relevant Cabinet or Cabinet Committee could consider and approve them prior to the hearing.
Ms Ware states that the March 2024 House Folder Notes were submitted to The Cabinet Office by hard copy and on an encrypted USB on 27 February 2024. At the hearing she said that she does not know what happens to the Notes but she receives a decision from The Cabinet Office setting out what the decision was. She states that her review of eCabinet, the confidential document management system used to store Cabinet documents, to which certain officers in government departments and agencies have access, indicates that:

upon its being submitted to Cabinet, the March 2024 House Folder Notes were assigned a Cabinet number; and
the March 2024 House Folder Notes were considered by the Strategy Committee of Cabinet on 28 February 2024.

Ms Ware's evidence is that the message back from Cabinet in the eCabinet system equates to approval of the documents and that there were no constraints on that approval.

Are the documents Cabinet information?

It is agreed that the relevant provision is cl 2(1)(c) of Sch 1 which defines a document to be Cabinet information if it is "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". There is no requirement that the document is actually submitted to Cabinet or that approval is actually given.
Unlike in cl 2(1)(b) of Sch 1, in cl 2(1)(b) the "dominant purpose" for which a document is prepared is not for submission to Cabinet but for some other purpose. The Tribunal has considered the meaning of the term "dominant purpose" primarily in relation to cl 2(1)(b) but the conclusions are also relevant to cl 2(1)(c). The purpose in question must be "causative in the sense that, but for its presence" the document would not have been prepared: D'Adam at [51]; Searle at [35]. The effect of cl 2(1)(c) is a document prepared for a particular dominant purpose (e.g. to be used in preparing for attendance at Budget Estimates) will be "Cabinet information" where the document is also prepared for the purpose of obtaining Cabinet's approval for the document to be used for the dominant purpose.
Mr Patrick states that it is not known when the responsive documents were prepared, however, I accept that the dominant purpose for which the relevant documents in the House Folder Notes were prepared was for use by the Minister for Families and Communities and Departmental witnesses at the Budget Estimates hearing on 4 March 2024.
Mr Patrick sets out five grounds on which he challenges whether the documents were prepared for the purpose of being submitted to Cabinet for Cabinet's approval. These are dealt with below.

Ground 1 - purpose not authorised

Mr Patrick states that the Department has not established that the documents in question were in fact prepared for Cabinet's approval. He states that the emails from The Cabinet Office and Ms Ware's statements are insufficient to establish that the approval process was an instruction of Cabinet. Rather, it appears that it was The Cabinet Office, comprised of officials, which was determining what was brought to Cabinet rather than Cabinet itself which controls its own work and processes. He notes that matters are brought to Cabinet exclusively by the Premier, the Cabinet itself, or a Minister. In his submission it was up to the Department to produce as evidence a direction from Premier or Cabinet directing that Budget Estimates briefs must be approved by Cabinet or a committee of Cabinet. He submits that in the absence of such evidence I cannot be satisfied that the House Folder Notes were prepared for the purpose of being submitted to Cabinet for Cabinet's approval.
At the hearing Mr Patrick referred to Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719, a decision of the Administrative Appeals Tribunal in which it was held that the National Cabinet formed in response to the COVID-19 pandemic was not a committee of the Cabinet of the Commonwealth and thus did not constitute Cabinet for the purposes of the Freedom of Information Act 1982 (Cth). Given the context, that decision, while it contains important observations and findings about Cabinet and Cabinet committees, does not assist in determining whether the documents in question in this case fall within cl 2(1)(c).
I do not consider that the fact that the Department has not provided a copy of a directive from Cabinet or the Premier that Budget Estimates briefs must be approved by Cabinet or a committee of Cabinet is necessarily indicative of a lack of authority for the process. Ms Ware's evidence is that the process has been in place for many years and followed by successive governments. The fact that the March 2024 House Folder Notes were assigned a Cabinet number on submission and that eCabinet records that they were considered at the 28 February 2024 meeting are strong indicators that the documents were submitted for approval and were thus prepared for that purpose.

Ground 2 - the Hollowmen practice

Mr Patrick refers to debates in the Legislative Council when the GIPA Bill was introduced in 2009. In particular he refers to a statement by the then Attorney General, the Hon. John Hatzistergos on 24 June 2009: The new definition expressly provides that a document prepared for Cabinet's consideration is only a Cabinet document if that was the dominant purpose for which it was prepared. It is because of this more stringent dominant purpose test in relation to documents submitted for Cabinet consideration that the bill now needs to include a provision dealing with documents submitted for Cabinet's approval. For instance, Cabinet might be asked to approve a document setting out the proposed Government response to a parliamentary inquiry. The dominant purpose of that document is clearly not submission to Cabinet; the dominant purpose of that document is to respond to the Parliamentary inquiry. Nevertheless, until Cabinet approves a response the document should properly be considered to be a Cabinet document.
Mr Patrick states that the practice followed in relation to the Budget Estimates House Folder Notes do not equate to those set out by Mr Hatzistergos, but are more akin to those portrayed in a skit in the television series "The Hollowmen", where documents were wheeled through a Cabinet room so that the government could claim they were cabinet-in-confidence.
Mr Patrick also refers to the number of documents contained in Budget Estimates briefs which the emails attached to Ms Ware's affidavit reveal were to be considered on particular days by either Cabinet or the ERC. He estimates that around 420 documents would need to be considered in each session and states that any decision that Cabinet and the ERC had the capacity to consider and give approval to 420 documents in one session is legally unreasonable.
Mr Patrick draws an analogy with Ryan v Department of Infrastructure [2004] VCAT 2346 which was a case which considered the Cabinet documents exemption in the Victorian Freedom of Information Act 1982. The context of the case was the selection of a site in Victoria for the long term containment of hazardous wastes. One category of documents in issue was hundreds of certificates of title which had been obtained to identify the pattern of land tenure in and around sites and areas of interest, as this might be relevant in relation to the question of land acquisition and buffer distances. One of the issues before the Tribunal was whether these documents were "brought into existence for the purpose of submission for consideration by Cabinet". The Tribunal found that when the certificates were prepared the department intended that these documents be submitted to Cabinet and that the certificates were submitted to Cabinet but was not satisfied that at the time the certificates were prepared a substantial intention was that the Cabinet would consider the certificates themselves. The Tribunal stated that it was "far fetched to think that members of Cabinet would examine some hundreds of certificates of title": at [38]-[39].
The case of Ryan, however, concerned different legislative provisions to that under consideration here. In Ryan the issue was whether the documents had been "brought into existence for the purpose of submission for consideration by Cabinet" (emphasis added). Clause 2(1)(c) of the GIPA does not require that the documents have been brought into existence for the purpose of consideration by Cabinet. Indeed, the clause does not mention consideration by Cabinet and is confined to the document being prepared for the purpose of being submitted to Cabinet for Cabinet's approval. This is in contrast to cl 2(1)(b) which does require that a document has been prepared for the dominant purpose of its being submitted to Cabinet "for Cabinet's consideration".
In any event, the question is not whether informed approval had been given by Cabinet to the March 2024 Budget Estimates House Folder Notes. Rather, it is the purpose for which the documents were prepared that is in issue. Indeed, cl 2(1)(c) does not require either submission to Cabinet or approval by Cabinet. Although not strictly relevant, I note that the meetings of Cabinet and the ERC that Mr Patrick refers to were not the meetings to which the documents in question in this case were submitted.
The meeting in question was a meeting of the Strategy Committee of Cabinet on 28 February 2024 which was scheduled to consider briefs from four portfolios. The total number of documents included in the briefs is not known and there is no evidence, if such evidence is at all relevant to the question to be decided, that the documents could not have been considered and approved by the Committee.

Ground 3 - no longer Cabinet documents

Mr Patrick submits that, once a document has been approved by Cabinet to be used for the dominant purpose for which it was prepared, the Cabinet exemption in cl 2(1)(c) no longer applies. In aid of this submission Mr Patrick relies upon decisions of the High Court and the South Australian Court of Appeal to the effect that legislation such as the GIPA Act should be interpreted in a manner consistent with the objectives of the legislation which involves consideration of the text of the relevant provisions, having regard to their context and purpose.
Mr Patrick refers to the need for confidentiality to attach to Cabinet deliberations in order to protect Cabinet solidarity and maintain the principle of collective responsibility for any decision which may be made: see Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 615. He states, however, that in the absence of an attack on collective responsibility for a decision, and in the absence of an assault on the bond of cabinet solidarity, there is no basis for applying a Cabinet-in-confidence privilege. He then states that a department's material prepared for Budget Estimates is not normally protected by the doctrine.
Mr Patrick argues that the terms of cl 2(1)(c) make it clear that documents the clause is directed at would not otherwise attract the Cabinet protection, and that the clause grants temporary protection only up to the point of Cabinet's approval, after which the protection falls away. Mr Patrick appears to derive this view from the statement quoted above at [33] from the then Attorney General, the Hon. John Hatzistergos, when he stated at the end of the example he gave during the debate on the GIPA Bill: "Nevertheless, until Cabinet approves a response the document should properly be considered to be a Cabinet document." Relying on this view, Mr Patrick states that the approval step having occurred, the information contained in the responsive documents is no longer Cabinet information and can now be, and has been, used for its dominant purpose. He therefore submits that I should find that the documents are not exempt under cl 2(1)(c).
I understand Mr Patrick's submissions to be that the proper interpretation of cl 2(1)(c) would be one which has regard to the context within which Cabinet confidentiality is seen to operate in support of the doctrine of Cabinet responsibility and solidarity, and has regard to the objects of the GIPA Act in fostering access to government information.
In Statutory Interpretation in Australia, Pearce, DC (10th ed, 2024, LexisNexis Australia) the author refers to the statement by the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [14], as summarising the present basis for interpreting legislation: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
In SZTAL, at [37]-[39], Gageler J emphasised that context, in the broad sense, is only useful to the extent that it assists in understanding the meaning of the text: … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'.
In s 4 of the GIPA Act Parliament has expressed its intention that the Act should be interpreted and applied so as to further the object in s 3(1): (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
A construction of a provision that would promote the purpose or object underlying the Act "shall be preferred to a construction that would not promote that purpose or object": s 33 Interpretation Act 1987.
As was noted by the Appeal Panel in DNM v NSW Ombudsman [2019] NSWCATAP 77 at [39], the primary objective of the GIPA Act is to give members of the public an enforceable right to access government information. But the GIPA Act has other purposes, including restricting or prohibiting access when there is an overriding public interest against disclosure. In this case, that public interest against disclosure is the interest in protecting Cabinet information.
The interpretation suggested by Mr Patrick would have me read words into the provision that are currently not there. There is nothing in cl 2 to suggest that, once Cabinet gives its approval to a document caught by cl 2(1)(c), the clause no longer applies. In fact, approval does not need to be given for the clause to apply as it applies "whether or not the approval is actually given".
It is unclear what the then Attorney General was referring to when he made the statement referred to at [33] above. Clause 2(2) provides the only circumstances where information contained in a document is not Cabinet information. These are if public disclosure of the document has been approved by the Premier or Cabinet (cl 2(a)) or if 10 years has passed (cl(2)(2)(b)). If the document itself is not authorised to be disclosed publicly then the protection of cll 2(1)(a)-(f) remains. The Department states that Mr Hatzistergos' statement was made in the context of a document being approved by Cabinet for public disclosure (a response to a parliamentary inquiry), and is therefore a document to which cl 2(2)(a) would apply. That appears to be likely. In any event, whatever his statement meant, I am satisfied that cl 2(1)(c) does not cease to have effect upon approval being given by Cabinet.

Ground 4 - Disclosure was approved

Mr Patrick submits that cl 2(2)(a) in fact applies and the information is no longer Cabinet information because disclosure of the document in a public forum, Budget Estimates, was approved by Cabinet. He also refers to s 11 of the Parliamentary Evidence Act 1901 and notes that Ms Czech was compelled to answer any question relating to the material in the brief. He acknowledges that what was actually disclosed at Budget Estimates would have been limited by the questions asked by the Members of the Committee and the extent to which Ms Czech decided to respond to those questions or offer material. He states, however, that does not detract from the fact that the Strategy Committee of Cabinet had authorised all the information contained in the responsive documents to be disclosed if and as necessary, mindful of s 11 of the Parliamentary Evidence Act.
Under cl 2(2)(a) information contained in a document is not Cabinet information if public disclosure of the document has been approved by the Premier or Cabinet. It is not sufficient that some of the information in the document finds its way into the public domain. As was stated in Lock the Gate Alliance v Department of Planning and Environment [2019] NSWCATAD 6 at [37], "on a plain reading of the text it is the document itself which must have been approved for public release, not information contained in that document". Ms Ware's evidence is that, to her knowledge, the March 2024 House Folder Notes have not been publicly disclosed or been the subject of an approval for public disclosure by the Premier or Cabinet. She states that during her five years in her current role, she has never seen a House Folder Note disclosed publicly.
I have no reason to doubt the evidence of Ms Ware and am not satisfied that disclosure of the March 2024 House Folder Notes has been approved by the Premier or Cabinet. Clause 2(2)(a) does not apply.

Ground 5 - It's a fact

Clause 2(4) provides that information is not Cabinet information to the extent that it consists solely of factual material, unless two exceptions apply, both of which are not relevant here. Mr Patrick refers to Ms Ware's statement in her affidavit that the information in the documents responsive to the access request is "a combination of facts, statistics, client information, policy views, and proposed responses to particular lines of questioning which might be raised at the 4 March 2024 Budget Estimates hearing." He then submits that the categories used by Ms Ware meet the terms of "solely factual material" in cl 2(4) and the information contained in the responsive documents is not Cabinet information. In support of this submission, Mr Patrick also refers to the "Guidelines for Appearing Before Parliamentary Committees" published on the website of the Department of Premier and Cabinet which states that officers giving evidence before parliamentary committees "may only give evidence of a factual nature." Mr Patrick also refers to the "Procedural Fairness Resolution for Inquiry Participants" issued by the Legislative Council which states that public officials "will not be asked to give opinions on matters of policy". I note that that document relates to inquiries and not to Budget Estimates hearings.
The statutory test, however, is whether the information consists solely of factual material, not whether it contains factual material as well as other material of a non-factual nature: D'Adam at [71]. Ms Ware's evidence is to the effect that the information in the documents is a combination of both factual material and non-factual material, in particular she states that it includes "policy views and proposed responses to particular lines of questioning". As the Department points out, the March 2024 House Folder Notes were not prepared merely for use by government officials. They were prepared principally for Minister Washington, who would be expected to be asked, and to answer, policy questions at Budget Estimates hearings.
In light of the evidence, I cannot agree with Mr Patrick's statement that the documents contain factual material only. The exception in cl 2(4) therefore does not apply.

Conclusion

While I understand Mr Patrick's scepticism and his concerns that cl 2(1)(c) could be used to provide a document which would not otherwise be classed as Cabinet information with the protections afforded to Cabinet information under the GIPA Act, my task is to apply the provisions of the GIPA Act as they have been enacted by the Parliament.
I am satisfied that the Department has established on the balance of probabilities:

the responsive documents in the March 2024 House Folder Notes were prepared for the dominant purpose of use by the relevant Minister and departmental witnesses at the Budget Estimates hearing on 4 March 2024;
in accordance with a long-standing practice, the responsive documents in the March 2024 House Folder Notes were also prepared for submission to Cabinet for approval for use at the Budget Estimates hearing on 4 March 2024;
the responsive documents in the March 2024 House Folder Notes were in fact submitted and approved by a committee of Cabinet;
the responsive documents in the March 2024 House Folder Notes have not been approved for release by the Premier or Cabinet; and
the responsive documents in the March 2024 House Folder Notes are not comprised of solely factual material.

I am satisfied that, on the basis of the available evidence, there are reasonable grounds for the Department's claim that the relevant documents in the March 2024 House Folder Notes are Cabinet information within the meaning of cl 2(1)(c) Sch 1 of the GIPA Act. The application must therefore be dismissed.

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: 04 February 2025

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (11)