Ryan v NSW Minister for Planning and Open Spaces

NCAT Appeal Panel|2021-06-18

Introduction

Section 10.17 of the Environmental Planning and Assessment Act 1979 ("EPA Act") commenced operation on 25 March 2020. That section provides the respondent with a broad power to make orders authorising development to be carried out on land without the need for any approval under the EPA Act or consent from any person and for such orders to have effect despite any environmental planning instrument or development consent.
The only pre-conditions to the making of such an order are those set out in s 10.17(5): The Minister may make an order under this section only if the Minister - (a) has consulted the Minister for Health and Medical Research, and (b) is reasonably satisfied that the making of the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 Pandemic.
On 31 March 2020, the respondent made a series of such orders. Of present relevance are the Temporary Workers Accommodation Order and the Construction Work Days Order ("Orders").
During May 2020, the appellant made two access applications under the Government Information (Public Access) Act 2009 ("GIPA Act") to the respondent, seeking access to various records relating to the making of the Orders, including communications between the respondent and the Minister for Health and Medical Research.

The hearing and decision below

At the hearing before the Tribunal, the respondent contended that the information within the three withheld emails should not be provided to the appellant because the public interest considerations against disclosure identified in cll 1(e) and (f) in the table within s 14 of the GIPA Act outweighed the public interest considerations in favour of disclosure of that information.

Evidence before the Tribunal

In support of his contentions, the respondent relied upon an affidavit of Mr Loomes affirmed 19 October 2020 in which Mr Loomes, amongst other things: 1. set out his experience within the respondent's office generally and in the making of the Orders, including his consultations with Mr Clapin during the period 27 to 31 March 2021 and that a number of different options were considered by the respondent before the Orders were made; 2. set out his understanding that those consultations were confidential; 3. described the withheld emails as documents setting out issues and concerns regarding draft versions of the Orders, options to address those issues and concerns and measures taken to address those issues and concerns; 4. set out his concerns as to the effect that the release of the information would have, including upon the ability of the Minister to have access to full and frank advice when dealing with the response to the COVID-19 pandemic; 5. stated that the respondent's duties under s 10.17 are ongoing and: 1. were exercised with respect to another order made under that section in August 2020; 2. that as at the date of his affidavit potential further orders were the subject of the consultation process and he expected they would be made soon thereafter; and 3. he expected, based on his experience of working in the respondent's office including advice received by that office since March 2020, that it would be necessary for further orders to be made under s 10.17.
Mr Loomes was not challenged on the evidence that he gave.
In its Reasons, the Tribunal summarised the evidence of Mr Loomes as follows: 17. The respondent relies on an affidavit of Mr T Loomes of 19 October 2020. Mr Loomes is an experienced ministerial advisor and Director of Parliamentary Business in the office of the respondent Minister. He was involved in development of the Orders. 18. He outlines the background to development of the Orders and the determination of the GIPA applications. He sets out the concerns surrounding the Covid 19 pandemic in its early stages. He states that government responses require a rapid and timely response, and that the Minister needs advice of a frank character which, in Mr Loomes' opinion, if it was required to be publicly disclosed would significantly fetter the deliberative and decision-making process, especially where decisions are required to be rapid in response to public health emergencies. 19. He attests to a similar view held by his counterpart who advised the Minister for Health and Medical Research. In his affidavit he spoke of his concern that disclosure could undermine the quality of consultations and deliberations and the timeliness with which they occur (para 30 Affidavit). He says that he is concerned that public release of information could have the result that ministerial advisors would feel constrained in raising issues and identifying the full range of options and that this will impede the full and free exchange of ideas as part of the consultation process (para 31 Affidavit). 20. Further there is concern that if required to provide public access to information of this kind that advisers may prefer to carry out can consultations by way of oral discussions rather than correspondence, so that the records would not reflect all of the issues and options considered, so that the basis on which a minister exercises their functions could decline in quality. It was submitted that by using discussions 'off the record' there will be a likelihood of decisions of lesser quality. It was submitted that was keeping a record of decision making would lead to better decisions which are better thought out. 21. Mr Loomes also expressed his concern that decision-making would be less timely. Further Mr Loomes stated that (at the time of making his affidavit) other orders had been and were expected to be made by the respondent Minister so that policy deliberations are ongoing are not a completed process.

Summary of submissions

The Tribunal then summarised the submissions of the parties.
The respondent's submissions were summarised as follows: 1. the respondent recognises the various public interest factors in favour of disclosure (at Reasons [27]); and 2. for the three withheld emails, the considerations in favour of disclosure are outweighed by the considerations against disclosure in cll 1(e) and (f) in the Table in s 14 of the GIPA Act (at Reasons [27] - [28]).
The appellant's submissions were summarised as follows: 1. there is a weightier than usual public interest in the information sought, in the light of the extraordinary power given to the Minister to override the provisions of the EPA Act for public health reasons, subject to a requirement to consult with the Health Minister (at Reasons [22]); 2. the respondent has not established that there was an expectation that discussions would be confidential (at Reasons [22]); 3. now that the emergency response to Covid-19 has passed, the disclosure of the deliberations in relation to the Orders would not prejudice the process involved in promulgating future orders (at Reasons [23]); 4. the respondent has provided insufficient evidence of prejudice to consultation in the future (at Reasons [23]); 5. decision-making should be routinely transparent (at Reasons [24]); 6. it could be appropriate to redact some of the material in the documents withheld (at Reasons [24]); and 7. the respondent may not have responded fully to the access applications. This submission is based upon Mr Loomes' statement that different options were considered which suggests that there were more documents held (at Reasons [25]).

Reasoning re the balancing of public interest considerations for and against disclosure

In considering whether the information in the three emails should be provided to the appellant, the Tribunal considered the public interest considerations in favour of disclosure, the public interest considerations against disclosure and how they ought to be weighed against each other.
The Tribunal's reasoning with respect to the public interest considerations in favour of disclosure is found at paragraphs [22] and [44] of the Reasons: 22. The applicant's submissions are that here there is a weightier than usual public interest in the information in the light of the extraordinary power given to the Minister to override the provisions of the EPAA for public health reasons, subject to a requirement to consult with the Health Minister. He further submits that the respondent has not established that there was an expectation that discussions would be confidential. ... 44. I agree with the applicant's submission that because of the context in which these documents were created as a response to the Covid 19 pandemic and in recognition that the provisions override the usual rules concerning environmental planning and assessment there is a particularly high public interest in disclosure of information to ensure that the appropriate processes have been followed. The GIPA Act is one of the few avenues available to the New South Wales general public to oversee the operation of these laws of New South Wales.
The Tribunal's reasoning with respect to the public interest considerations against disclosure focused on the operation of cl 1(e) and may be summarised as follows: 1. deliberative processes are equivalent to an agency's thinking process in determining a course of action (Reasons [29]); 2. Mr Loomes' affidavit indicates that there are ongoing deliberative processes in relation to the respondent's portfolio responsibilities in relation to the COVID-19 response, and in his opinion those ongoing deliberative processes would be prejudiced by the release of the information (Reasons [30]); 3. whether that disclosure would reasonably be expected to have the prejudicial effect is an objective test, but in applying such a test weight should be given to the view of the agency's decision maker (i.e. Mr Loomes) in this case who was also the author or recipient of the information in the documents in question (Reasons [31]); 4. Mr Loomes also made it clear that in his opinion the parties involved in the exchange of emails held the expectation that their consultation would be confidential. This is a factor to be taken into account, but by now employees of agencies must surely realise that in the vast bulk of cases that the government information which they deal with in the course of performing their duties is able to be the subject of a GIPA application (Reasons [32]); 5. clause 1(e) has two elements: 1. whether the information in questions involves or contains a deliberation, consultation, opinion, advice or recommendation; and 2. whether the revelation of such information could be reasonably expected to prejudice a deliberative process of government or an agency. Use of the expression "in such a way" in the item leaves open the possibility that there may be some way of disclosing information which would not be prejudicial e.g. by appropriately redacting the document (Reasons [33]); 1. there must also be an appropriate connection established between the information in the deliberation, consultation etc and the prejudice to the deliberative process (Wall v University of Sydney (2008) NSWADT 213 at [36]) (Reasons [34]); and 2. in this regard, Mr Loomes' evidence is that the advisers deliberated in the expectation of confidentiality and that disclosure of their "thinking" could lead in the future to ministerial advisers feeling constrained in raising issues, and suggesting options which are committed to writing, and lead to longer timeframes for consultation and deliberation because of the feeling of constraint presented by the prospect that their work may be disclosed. This is particularly the case in a situation where the government must move rapidly in response to the pandemic, and new issues must be addressed in an uncertain future (Reasons [35]).
The Tribunal's consideration of the three withheld emails is set out at Reasons [37]-[40]: 37. In order to provide the context in which the refused documents were created, I note that that Mr Loomes sent an email to his counterpart at the office of the Minister for Health (Mr Clapin) on Sunday, 29 March 2020 seeking comments on a draft of the Orders to be issued imminently. The relevant parts of this document have been released. 38. The first confidential document to which access was refused is a reply from Mr Clapin very early on the morning of Tuesday, 31 March 2020. This gives some indication of the urgency of the matter. It attached a document setting out 'Issues Raised by NSW Health'. 39. The second confidential document to which access was refused is an email from Mr Loomes to Mr Clapin sent later on Tuesday, 31 March 2020 setting out in tabular form each Issue raised by NSW Health, and the Amendment made to the draft Order to accommodate that Issue of concern. 40. The third confidential document to which access was refused is a reply email from Mr Clapin to Mr Loomes sent shortly afterwards on Tuesday, 31 March 2020 thanking the respondent Minister for his consultations and setting out in tabular form the NSW Health Issues, the Amendments to resolve the NSW Health concerns, and some further commentary from NSW Health indicating how the amendments could be implemented in practice.
The Tribunal then expressed the following views (Reasons [41]): 37. It seems to me that the documents do contain material related to the deliberations (or thinking processes) of government in relation to development of the relevant pieces of legislation. In my view the respondent has made out its ground in respect of Table item 1(e). Mr Loomes' evidence persuades me that government processes could reasonably be expected to be impeded if such deliberations were to be made public. I consider that policymakers would feel more inhibited in putting ideas on paper, if they knew that such information was to be made public and that they may be expected to be slower in their work of developing policy, particularly in a fast changing situation such as responses to the Covid 19 pandemic. The connection between the information and the prejudice is clear.
Having decided that the respondent had established the public interest consideration in cl 1(e), the Tribunal turned to the balancing exercise required by s 13 of the GIPA Act. At Reasons [43]-[49] the Tribunal stated: 43. The next step is what weight is to be given in balancing the public interest for and against disclosure of the documents? 44. I agree with the applicant's submission that because of the context in which these documents were created as a response to the Covid 19 pandemic and in recognition that the provisions override the usual rules concerning environmental planning and assessment there is a particularly high public interest in disclosure of information to ensure that the appropriate processes have been followed. The GIPA Act is one of the few avenues available to the New South Wales general public to oversee the operation of these laws of New South Wales. 45. However, the presumption in favour of disclosure is not conclusive (e.g.it is not open access information contemplated by sec 6 GIPA Act). 46. The public interest considerations against disclosure must be weighed. The matters set out in the affidavit that revelation of these documents would inhibit the free and timely flow of ideas within the forums of government which need an opportunity to provide frank and fearless advice are compelling. 47. As Mr Loomes puts it, government advisors would feel reluctance in providing their input if they knew that their deliberative and consultative work was likely to be revealed to the public through the GIPA process. 48. I am cognisant of the principles contained in sec 15 GIPA Act which require that I wholly ignore a number of matters such as that the government could be embarrassed by disclosure. I do not consider that this is a matter which arises here. There is no suggestion that reliance is placed on such matters. 49. In the end I am persuaded by the evidence and submissions that the reliance on Table item 1 (e) of S 14 GIPA Act is established and is of such substance as to outweigh the public interest considerations in favour of disclosure. I would therefore affirm the decision of the agency in relation to the contested documents.

Reasoning re adequacy of response to the access applications

The Tribunal's reasoning with respect to the appellant's submission that the respondent may not have responded fully to his access applications is found at [25]-[26] of the Reasons: 25. Finally, he submits that respondent agency may not have responded fully to the GIPA Act application. He takes this view based upon Mr Loomes' statement (para 23 Affidavit) that different options were considered and draws from that a conclusion that there were more documents held. Examining the notices of the decisions which were taken it can be seen that a number of search terms were used to identify relevant information in the written records, and that any reference to both paragraphs (a) and (b) of the new section 10.17(5) EPAA were searched. 26. In my view there is nothing in the material before me which suggests that all relevant documents have not been properly searched for and considered.

Nature of the appeal and the grounds of appeal generally

This is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013.
The appellant's Notice of Appeal sets out seven grounds of appeal. During the hearing of the appeal the appellant, who is a legal practitioner, indicated that only grounds 2, 3, 4 and 5 were pressed as raising questions of law and that all grounds were relied upon for the purpose of his application for leave to appeal. The Appeal Panel considers below, first the suggested questions of law (in the order in which they were addressed at the hearing of the appeal) and, secondly, the application for leave to appeal.

Ground 4: The Tribunal erred in finding disclosure of a historical process was prejudicial to a deliberative process of government

The appellant's argument is in essence that: (1) cl 1(e) applies where the deliberations that might be prejudiced are existing or at least identifiable and not "historical" deliberations; and (2) the deliberations that might be prejudiced in this case are historical, with the result that cl 1(e) does not apply in this case.
The major premise in this argument (i.e (1) above) raises a questions of law, concerning the interpretation of cl 1(e) and is considered immediately below. The minor premise (i.e (2) above) involves a challenge to findings of fact made by the Tribunal and is considered below as part of the application for leave to appeal.

Submissions

The appellant's submissions may be summarised as follows: 1. the correct interpretation of cl 1(e) is that the prejudice must be reasonably expected to occur to an existing deliberative process, or at least have a direct influence on future deliberations; 2. the deliberative process must be specific or identifiable; 3. the Tribunal erred by construing cl 1(e) more broadly; 4. it is not sufficient that there is a potential deliberative process. As the appellant explained in his oral submissions, this is not a submission that the deliberative process cannot be a future deliberative process, but to the extent that it is, it must be identifiable; 5. the appellant's interpretation is supported by decisions of the Tribunal such as AQJ v University of New South Wales [2013] NSWADT 306 and Watts v Department of Planning and Environment [2016] NSWCATAD 42; 6. there must be a suitable connection between disclosure of the information and prejudice to the identified deliberative process; and 7. to the extent that other cases have found that the deliberative process that might be prejudiced is a future deliberative process, such as Murphy v Broken Hill City Council [2015] NSWCATAD 135, Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13 and Owen v Commissioner of Police [2020] NSWCATAD 296, those cases are incorrect and inconsistent with the presumption of disclosure of information in the GIPA Act.
The respondent submitted that: 1. cl 1(e) does not require that the deliberation in respect of which the information is disclosed be the same deliberative process as the one that may be prejudiced by the provision of the information. If the legislature had intended that they be the same deliberative process, then it would not have used the word "a" in cl 1(e) and instead would have used the word "the"; 2. to the extent that the decisions in AQJ and Watts suggest that it needs to be the same deliberative process, those decisions should not be followed; 3. there must be a relevant connection between the provision of the information and the prejudice to a deliberative process: Van der Wall v University of Sydney [2008] NSWADT 213 at [36]; 4. with the requirement of a relevant connection in mind, the Tribunal has previously found that cl 1(e) is capable of applying where the revealed deliberative process has concluded, but where disclosure could reasonably be expected to prejudice future deliberative processes, including Murphy v Broken Hill City Council, Cameron v Commissioner of Police, NSW Police Force, and Owen v Commissioner of Police; and 5. the Tribunal's analysis was orthodox, in that it identified the two elements of cl 1(e), recognised the need for an appropriate connection between them, and found that there was such a connection.
The Information Commissioner submitted that, consistent with the decision in Commissioner of Police NSW Police v Camilleri [2012] NSWADTAP 19 at [37], the respondent must point to a particular deliberative process rather than deliberative processes at large.

Consideration

Clause 1(e) provides: 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 (whether in a particular case or generally) - … (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
The Tribunal's interpretation of cl 1(e) was set out at Reasons [33] and [34]: 33 In relation to table item 1(e) there are two elements. First one must look to see whether information involves or contains a deliberation, consultation, opinion, advice or recommendation. Then the second element is that one looks to see whether the revelation of such information could be reasonably expected to prejudice a deliberative process of government or an agency. Use of the expression "in such a way" in the item leaves open the possibility that there may be some way of disclosing information which would not be prejudicial e.g. by appropriately redacting the document. 34 Also, there must be an appropriate connection established between the information in the deliberation, consultation etc and the prejudice to the deliberative process Wall v University of Sydney (2008) NSWADT 213 at (36).
The Appeal Panel is not persuaded that the Tribunal erred in its interpretation of cl 1(e). The approach set out at Reasons [33] - [34] conforms with the requirements of the clause.
Whilst the appellant submitted that the Tribunal erred in not requiring that the deliberative process must be extant and identifiable, there is no suggestion in the Reasons that the Tribunal took a contrary view. Indeed, the Tribunal found that there was an ongoing deliberative process concerning the making of orders under s 10.17.
It is thus strictly unnecessary to address the wider debate between the parties as to the correct interpretation of cl 1(e). Nevertheless, the Appeal Panel notes that: 1. cl 1(e) contemplates that the deliberative process that may reasonably be expected to be prejudiced may be a "particular case or generally". Thus, the focus of this clause goes beyond particular deliberative processes; 2. there is no requirement that the deliberative process that may reasonably be expected to be prejudiced is the same as the deliberation which could be expected to be revealed by disclosure of the information (where it is a deliberation rather than a consultation, opinion advice or recommendation that would be revealed by disclosure of the information). This is clear from the use of the phrase "a deliberative process"; 3. the existence of a deliberative process which might reasonably be expected to be prejudiced by disclosure will turn upon the evidence before the Tribunal in each case. Whilst the parties referred in their submissions to particular cases in support of their preferred interpretation, those cases turn on their particular facts. For example, in AQJ, the Tribunal found that the deliberative process had concluded, whereas in Owen the Tribunal found that there was an ongoing deliberative process.
The appellant's real complaint is that the Tribunal should not have accepted the evidence of Mr Loomes in support of its finding of fact that there was an ongoing deliberative process with respect to orders under s 10.17 of the EPA. This does not involve a question of law and is addressed below as part of the application for leave to appeal.

Ground 3: The Tribunal engaged in illogicality by stating that employees of agencies must surely realise that the vast bulk of cases that the government information they deal with is subject to the GIPA Act [32] and then adopting the position put at paragraphs [46]-[49] without reasons which explain the disparity

Submissions

The appellant's submission was in essence that the Tribunal's reasoning was illogical because there is a direct contradiction between paragraphs [32] and [47] of the Reasons. In particular, the appellant submitted that the conclusion in paragraph [47] that government advisers would feel reluctance in providing their input if they knew that their deliberative and consultative work was likely to be revealed to the public through the GIPA process is directly contradictory to the statement in paragraph [32] that "by now employees of agencies must surely realise that in vast bulk of cases that the government information that they deal with in the course of performing their duties is able to be the subject of a GIPA application".
The respondent submitted that: 1. there was no contradiction, that paragraph [32] should be read as accepting the evidence of Mr Loomes that the parties involved in the exchange of emails expected that their consultation would be confidential and that the above-quoted section from paragraph [32] is a reference to the weight to be attributed to that evidence; 2. there is no inconsistency between officers understanding that documents may be subject to an application under the GIPA Act and those officers having an expectation that their communications are confidential. In other words, whilst a GIPA application may be made, some information is protected from provision to access applicants because of its confidential nature; and 3. there was thus no illogicality in the Tribunal's finding.
The Information Commissioner submitted that there appeared to be some inconsistency between paragraphs [32] and [47] of the Reasons and that paragraph [32] is more consistent with the objectives of the GIPA Act.

Consideration

The Appeal Panel is not persuaded that the Tribunal's findings were not open or lacked any logical connection. Paragraphs [32] and [47] are able to be read together. Paragraph [32] indicates the Tribunal's view that agency employees should be aware that the information with which they deal in the course of performing their duties is able to be the subject of an application for access. It does not indicate that such employees should be aware that all information caught by such applications, including confidential information, will be released. It is open for an employee to know that an application may be made for access to that information and to also know that some information may be protected from disclosure.
Thus it cannot be said that the Tribunal made a finding of fact which is "illogical" or "irrational" in that it was not open on the material before the Tribunal, or because there was no logical connection between that material and the inferences or conclusions drawn, or that the decision lacked "an evident and intelligible justification": Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [75]-[76].

Ground 5: The Tribunal did not take into account the appellant's submissions that there was public interest in disclosing the advice to the Minister for Planning by the Minister for Health on the basis of discouraging future corruption

The appellant submitted that: 1. he made the following written submission to the Tribunal: "It is submitted that the public interest is not only to be found in disclosing the Minister Health's advice, regarding extended work hours and temporary accommodation, but also be in providing for a process of accountability by which the public and Ministers may be aware that now and in the future decisions which have so much Ministerial discretion also attract a commensurate amount of public transparency. In other words, there is public interest in providing for public access to these advice and reasoning so that any future temptation to abuse of this extraordinary statutory power can be known by the and Parliament can be informed and consider repealing the special legislation (sic; emphasis added). …It is routine transparency that reduces the risk of governments acting in exceedance of power"; 1. whilst the Tribunal did take into account his submission with respect to the need for public transparency, it did not take into account his submission concerning "any future temptation to abuse of this extraordinary statutory power"; 2. the failure to take into account the latter submission is an error of law; and 3. there is a public interest in transparency and the reduction of opportunities for corruption.
The respondent submitted that: 1. the submissions before the Tribunal made no mention of "corruption" and there can be no error on the part of the tribunal in failing to address an argument that was not clearly made; 2. the Tribunal took into account the submissions made to it concerning the heightened public interest and that this is clear from paragraphs [22] and [44] of the Reasons; and 3. there is no error of law.

Consideration

The appellant did not frame this ground of appeal as a failure to take into account a relevant consideration. Such an argument would have failed as to qualify as a relevant, or mandatory, consideration, the matter not considered must be one which the decision-maker was bound to take into account, such obligation arising from the express terms of the statute or implied from its subject matter, scope and purpose: see Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86 at [9]. The question of potential corruption was not a mandated consideration under the GIPA Act.
Rather, the appellant argued that the Tribunal failed to engage with his submission concerning the potential for corruption arising from the nature of the power conferred on the respondent by s 10.17. A material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]- [25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 at [34].
The Appeal Panel is not persuaded that there was such a failure by the Tribunal. Paragraph [44] of the Reasons refers to an acceptance of the appellant's submissions including "there is a particularly high public interest in disclosure of information to ensure that the appropriate processes have been followed".
The appellant's argument concerning discouragement of future corruption as set out in ground 5 of the Notice of Appeal was part of that submission. Whilst the appellant contends that it was a stand-alone argument put below, the Appeal Panel is not satisfied that it was. As far as the Appeal Panel can discern from the appellant's written submissions before the Tribunal, the potential for corruption was not mentioned. No recording or transcript of the hearing before the Tribunal has been placed before the Appeal Panel.
At the hearing of the appeal the appellant sought leave to adduce new evidence concerning various reports of the New South Wales Independent Commission against Corruption which had not been placed before the Tribunal below and which, the appellant submitted, are supportive of the proposition that there is a high public interest in avoiding abuse of the statutory power in s 10.17 of the EPA. The appellant acknowledged that as those reports were not before the Tribunal, the Tribunal could not have erred in failing to take them into account. It is thus not necessary to consider the application to adduce new evidence (or the reports sought to be adduced) for the purpose of dealing with this ground of appeal, but it is considered below with respect to the application for leave to appeal.

Ground 2: The Tribunal described material released as outlining the gist of the discussions and consultations that took place [42], and subsequently made an error of law by taking this 'gist' into account in the balancing process when considering the disclosure of redacted documents

Submissions

The appellant submitted that: 1. the Tribunal took into account that the documents which have been released provide the gist of the discussions and consultations that took place; and 2. this is a consideration irrelevant to the functions of the Tribunal under the GIPA Act.
The respondent submitted that: 1. this ground is in substance a challenge to the merits of the decision rather than one which raises a question of law; and 2. information already available to the appellant is not an irrelevant consideration when conducting the balancing exercise required by the GIPA Act, as the extent to which the public interest favouring disclosure of information had already been met by the release of information to the appellant was relevant to the tribunal's assessment of the extent to which the release of additional information would further this interest.

Consideration

In order to persuade the Appeal Panel that the Tribunal has erred, the appellant must establish that the disclosure in other documents of material described as the gist of the discussions and consultations that took place was a consideration the Tribunal was not permitted to take into account. As explained by Basten JA in Lo v Chief Commissioner of State Revenue at [9]: …a matter traditionally described as an "irrelevant consideration" is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious.
Determining whether a particular consideration is prohibited requires consideration to be given to the nature of the power to be exercised and construction of the statute conferring the discretion: see ZGM v ZGN [2018] NSWCATAP 101 at [59]; ZOF v NSW Trustee and Guardian [2020] NSWCATAP 167 at [95]-[96] and the authorities there cited.
In the present case, the Tribunal considered the disclosure of the "gist of the discussions and consultations" as part of its balancing of the competing public interest considerations for and against disclosure, as required by s 13 of the GIPA Act. This is reflected in the ground of appeal under consideration, which contends that the Tribunal impermissibly took the particular information into account "in the balancing process".
There is no express prohibition in the GIPA Act on the taking into account of the nature of information otherwise disclosed to an access applicant, and the appellant did not identify such a prohibition. Whilst s 14(2) prohibits the taking into account of public interest considerations against disclosure other than those listed in the Table in that section, there is no suggestion that the Tribunal was taking this information into account as an interest against disclosure in contravention of s 14(2). Rather, it was being taken into account as part of the assessment of the weight to be given to competing public interest considerations as part of the balancing exercise.
Nor is such a prohibition to be implied by construing the GIPA Act and the appellant did not suggest such a construction. Thus, the Tribunal did not take into account an irrelevant consideration.

Conclusion as the questions of law

For the reasons set out above, no error of law has been established on grounds 2, 3, 4 and 5.

Application for leave to appeal

The Appeal Panel has a discretion whether to grant leave to appeal. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; or (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
As noted above, the application for leave to appeal draws from each of the seven grounds of appeal. Those grounds are considered below, in the order in which they appear in the Notice of Appeal.

Ground 1: The Tribunal erred by not making the best decision possible by failing to consider if the final version of the advice of the Minister for Health to the Minister for Planning could be released (which appears to be referred to at [40]) as opposed to only considering if a succession of records were to be disclosed which would then show the deliberations of the agency

Submissions

The appellant submitted that: 1. by referring to the three withheld emails in plural at Reasons [41], the Tribunal considered the release of these emails only on an "all or none" basis; and 2. the Tribunal ought to have considered whether the first or the third of those emails was the final form of the advice of the Minister for Health to the respondent and whether it could be released on the basis that it was the final version and thus "not deliberative".
The respondent submitted that: 1. it was not the case that the Tribunal only considered the emails as a collection and not individually and that it is clear from Reasons [38] to [40] that each email was considered separately; 2. it does not follow from the fact that a particular communication is the final communication that its disclosure would not reveal a deliberation etc and there is no basis in the evidence for such a conclusion. In particular, the final version would be a document which if disclosed would reveal the "consultation conducted"; and 3. the appellant had received documents, which as noted at Reasons [22] were dated 1 April 2020 (i.e. the day after the three emails) and which the Tribunal described as providing the gist of the discussions and consultations that took place (Reasons [42]).

Consideration

The appellant's case is in effect a challenge to the Tribunal's finding of fact at Reasons [41] that the release of each of the withheld emails would involve the disclosure of deliberations.
The Appeal Panel is not persuaded that the Tribunal erred. The appellant's argument depends upon two propositions: first, that one of the emails is the "final" version of the advice; and second that revealing the information in that document would not reveal any deliberations. It is not necessary to decide whether the first proposition is correct, because there is no basis for the second proposition. As the Tribunal found at Reasons [38]-[41], each email contained material related to such deliberations. Further, and critically, there is no basis from which to conclude that a "final" document is a series cannot reveal a deliberation.
The Appeal Panel also notes that there is no evidence before it that the appellant made a submission to the Tribunal that one of the emails was the "final" version and that the Tribunal should consider it in that way and that its contents, if revealed, could not amount to be revelation of a deliberation.

For the reasons set out above with respect to this ground, the Appeal Panel is not satisfied that there was any error of law. The appellant submitted that the Tribunal made an error of fact in describing the material released as disclosing the gist of the discussions and consultations, but there is no such error apparent on the materials before the Appeal Panel.

For the reasons set out above, with respect to this ground, the Appeal Panel is not satisfied that there was any error of law. The appellant has not identified any finding of fact which he contends was erroneous.

Ground 4: The Tribunal erred in finding disclosure of a historical process was prejudicial to a deliberative process of government

This ground of appeal, in so far as it raises a question of law has been considered above. As there noted, the Appeal Panel is not persuaded that there was an error of law.
Consideration is given below to whether the Tribunal made an error of fact by finding (at Reasons [41]) that there was a reasonable expectation that disclosure of the withheld emails could reasonably be expected to impede government processes.

Submissions

The appellant's submissions may be summarised as follows: 1. the respondent bore the onus of proving that there was a reasonable expectation of prejudice to a deliberative process; 2. the principles applicable when considering whether that onus had been discharged were described in Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 as follows: 59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses. 1. the evidence of Mr Loomes as to the expected effect upon government processes comprises mere statements of his opinion, and there are no real or substantial grounds, or inferences drawn from established fact to support his opinion; 2. Mr Loomes' evidence that Mr Clapin considered the consultation process to be confidential is not supported by evidence from Mr Clapin; 3. whilst Mr Loomes' evidence was that the deliberative process was ongoing, the Department of Planning's website shows that five decisions were made between 25 and 31 March 2020 but only three were made between 31 March 2020 and the date of the hearing (30 November 2020); 4. whilst Mr Loomes' evidence was that public health advice continues to evolve as more is learnt about the COVID-19 virus, it should be noted that the legislature has extended the operation of s 10.17 of the EPA Act so that it applies until March 2022; 5. the evolving health information and knowledge about the COVID-19 virus, together with the small number of decisions made, means that the deliberations made in March 2020 were particular to that time, historical and incapable of prejudicing an ongoing deliberation; and 6. the consultations between the respondent and the Minister for Health and Medical Research in this case are akin to a once only or occasional consultation, and may be contrasted to the ongoing considerations of the psychological capabilities of injured police officers (as in Owen). The present facts are analogous to those in Miskelly v Transport for NSW [2017] NSWCATAD 207 at [81], where the Tribunal held that timetabling information for Sydney trains was a snapshot of a point in time and superseded by subsequent information.
The respondent submitted that: 1. the appellant seeks to challenge findings of fact made at Reasons [30] and [41] on the basis of unchallenged evidence from Mr Loomes; 2. that evidence included evidence that: 1. the prescribed period for the power conferred by s 10.17 of the EPA Act had been extended by regulation from September 2020 until March 2021; 2. the respondent's duties under s 10.17 were ongoing; 3. there were ongoing deliberative processes; 4. in his view, those ongoing deliberative processes were capable of being prejudiced by disclosure of the withheld emails; 5. he anticipated that it would be necessary for the respondent to make further orders under s 10.17; and 1. the findings made by the Tribunal were open to it on the evidence and there is no basis for the Appeal Panel to interfere with those findings.

Consideration

This is a challenge to the Tribunal's finding at Reasons [41] that government processes could reasonably be expected to be impeded if the withheld emails were to be released. That finding was based on the evidence of Mr Loomes (see Reasons [17]-[21], [30]-[32] and [35]). The appellant seeks to undermine that evidence (and thus the Tribunal's finding) on two bases.
The first basis is that Mr Loomes' evidence is insufficient to discharge the respondent's onus of proof.
Contrary to the appellant's submissions, Mr Loomes' evidence is not in the nature of a mere statement. His evidence is a mixture of factual evidence, including as to his experience and the consultation process which led to the Orders, and opinion evidence as to what he expects the consequences of disclosure might be. To the extent that it is opinion evidence, this does not mean that it is not to be taken into account, given that the Tribunal is not bound by the rules of evidence: s 38 of the NCAT Act. In any event, such opinion evidence is not mere ipsi dixit, and is based upon Mr Loomes' experience. Further, and as noted above, the evidence of Mr Loomes was not challenged in cross-examination.
The second basis is that Mr Loomes' evidence is contradicted by other evidence, including matters such as the number of decisions made and the evolving nature of knowledge of the COVID-19 virus which the appellant submits establish that the deliberative process was not ongoing, but instead was closed or "historical". Again, the matters relied upon for the suggested contradiction could have been, but were not, put to Mr Loomes in cross examination. In any event, it is not apparent that these matters contradict, rather than support, the evidence of Mr Loomes.
The Appeal Panel is not persuaded that the Tribunal erred in making its finding on the basis of the evidence of Mr Loomes.

This ground is considered above. For the reasons set out there, the Appeal Panel is not persuaded that the Tribunal erred in law.
Nor is there a basis for finding an error in the Tribunal's fact finding process. As noted above, no specific submission was put concerning the possibility of corruption. Nor, as far as the material before the Appeal Panel discloses, was there any evidence on this topic.
As noted above, the appellant applied for leave to adduce before the Appeal Panel various reports of the New South Wales Independent Commission against Corruption which had not been placed before the Tribunal below and which, the appellant submitted, are supportive of the proposition that there is a high public interest in avoiding abuse of the statutory power in s 10.17 of the EPA. The respondent opposes that application on the basis that there is no reason why these reports could not have been put before the Tribunal.
The appellant accepted that there was no impediment to him placing these reports before the Tribunal. In these circumstances, the Appeal Panel denies the application to adduce new evidence.

Ground 6: The Tribunal did not place sufficient weight on the public interest in favour of disclosure and placed too much weight on the evidence in favour of non-disclosure (the effect on the free and timely flow of ideas within the forums of government at [46])

Submissions

The appellant submitted that: 1. at Reasons [46] and [47] the Tribunal stated: 46. ...The matters set out in the affidavit that revelation of these documents would inhibit the free and timely flow of ideas within the forums of government which need an opportunity to provide frank and fearless advice are compelling. 47. As Mr Loomes puts it, government advisors would feel reluctance in providing their input if they knew that their deliberative and consultative work was likely to be revealed to the public through the GIPA process. 1. the only evidence supporting this conclusion is the evidence of Mr Loomes and that evidence is opinion and a "mere statement and not based on observable evidence or established facts"; 2. the Tribunal did not cite other evidence or weigh the evidence and found at Reasons [50] that "This is sufficient to dispose of the matter ..."; and 3. despite noting at Reasons [44] that there is a particularly high level of public interest in disclosure, the Tribunal did not weigh those principles (and in particular the risk of corruption) against the claims made by Mr Loomes.
The respondent submitted that: 1. Mr Loomes' evidence provides an evidentiary basis for the conclusions at Reasons [46]-[47]; 2. the Tribunal took into account the appellant's submissions concerning the high level of public interest, a matter which the appellant's submissions recognise; 3. the Tribunal weighed the competing considerations; and 4. this ground amounts only to the appellant disagreeing with the Tribunal's conclusion that the considerations against disclosure outweighed the considerations in favour of disclosure.

Consideration

The weight to be given to the considerations against disclosure founded on that evidence and to the competing considerations in favour of disclosure, involves a broad value judgment, made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].
An Appeal Panel might grant leave to appeal where a decision of the Tribunal is against the weight of evidence that is, where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: see Collins at [77]. That is not this case, unless the Appeal Panel were to be satisfied that the evidence of Mr Loomes ought be disregarded or given negligible weight. For the reasons set out above with respect to ground 4, there is no reason to discount Mr Loomes' evidence. Thus, there was evidence before the Tribunal which supported the competing considerations and there was no preponderance of evidence in either direction.

Ground 7: The Tribunal erred by not determining that further searches were required despite the disclosure of the document titled "Further Orders", being an email from Tom Loomes to Edward Clapin dated 29 March 2020, stating on page 1 that "The construction and development industry ... has asked for some flexibility in constructions hours ..." and "... the agreed position between all stakeholders and our office ...is to allow weekday construction hours across weekends and public holidays..." and there being no records or documents produced which reflect these important reasons for the initiation and determination of the Minister's Orders

Submissions

The appellant submitted that: 1. document 2, which was disclosed by the respondent in redacted form, contains the following excerpt: Construction Work Days The construction and development industry, which constitutes approximately 10 per cent of NSW's economy, has asked for some flexibility in construction hours so they can adjust their workforce on site to allow for social distancing without a loss of productivity or jobs. The agreed position between all stakeholders and our office, which is reflected in this order, is to allow weekday construction hours across weekends and public holidays where businesses seek to do so to allow social distancing of workers across a greater number of work days. 1. that statement suggests there are: 1. communications from the construction and development industries requesting flexible working hours during the pandemic; 2. communications regarding an "agreed position" between the respondents' office and "stakeholders"; 1. such communications are information within the scope of the respondent's access applications; 2. thus the respondent did not fully respond to the access applications and further searches should be made; and 3. the Tribunal erred in concluding that there was nothing to suggest that all relevant documents had not been properly searched for and considered.
The respondent submitted that: 1. before the Tribunal, the appellant referred to the absence of documents which "outline the different options considered", and to the fact that Mr Loomes' affidavit only referred to s 10.17(5)(a) of the EPA Act (and not s 10.17(5)(b)) as the basis for submitted that the respondent had not properly construed his application and undertaken the necessary searches; 2. the respondent addressed this submission before the Tribunal and the Tribunal addressed it at Reasons [25] - [26]; 3. the appellant now seeks to make new submissions before the Appeal Panel, as to why the respondent should be required to undertake further searches, based on Document 2; 4. the appellant did not make these arguments before the Tribunal despite Document 2 being available to him at that time; and 5. the appellant should not be permitted to raise new arguments now before the Appeal Panel.

Consideration

As noted above, the Tribunal addressed a submission that the respondent's answer to the access applications was incomplete, at Reasons [25]-[26]. Those paragraphs are set out below: 25. Finally, he submits that respondent agency may not have responded fully to the GIPA Act application. He takes this view based upon Mr Looms' statement (para 23 Affidavit) that different options were considered and draws from that a conclusion that there were more documents held. Examining the notices of the decisions which were taken it can be seen that a number of search terms were used to identify relevant information in the written records, and that any reference to both paragraphs (a) and (b) of the new section 10.17(5) EPAA were searched. 26. In my view there is nothing in the material before me which suggests that all relevant documents have not been properly searched for and considered.
As the Tribunal noted at Reasons [25], the basis of the appellant's submission before the Tribunal was the reference in paragraph 23 of Mr Loomes' affidavit to different options having been considered prior to the Orders being made. In contrast, ground 7 suggests an entirely different basis, namely Document 2.
There is no evidence before the Appeal Panel, and the appellant did not submit, that a submission was made to the Tribunal that Document 2 was suggestive of the existence of other documents responsive to the access applications.
It follows that the Tribunal did not err in failing to determine that further searches were required because of Document 2.
As the Appeal Panel noted during the hearing of the appeal, it remains open to the appellant to make an access application for the information that he now asserts ought to have been, but was not, provided.

Conclusion on the application for leave to appeal

For the reasons set out above, the Appeal Panel is not persuaded that the grounds of appeal, individually or collectively, raise matters sufficient to justify the grant of leave to appeal.

Orders

The orders of the Appeal Panel are: 1. Application for leave to appeal dismissed; 2. Appeal 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: 21 July 2021

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