Snelling v Commissioner of Police, NSW Police

NCAT Administrative and Equal Opportunity|2017-02-23

Background

This is an application by Mr Peter Snelling, Secretary and Public Officer of the St George Hunters & Anglers Association Inc, for review of the decision of the Commissioner of Police, NSW Police Force ("the First Respondent"), made pursuant to s9(3) of the Government Information (Public Access) Act 2009 ("the GIPA Act").
The Applicant sought access to information in the following terms: A review of the NSW Police Firearms Registry was conducted for the NSW Government by Deloitte Australia and concluded… in November 2013. I would like access to this review which, as indicated by members of the NSW Government, would be made publicly available and it seems will now not be released.
On 22 December 2016, the First Respondent determined to refuse access to the 79 page report dated 9 December 2013 generated by Deloitte as a result of its review of the NSW Firearms Registry ("the Deloitte Report"), on the basis that it was Cabinet Information, having regard to cl 2(1)(b) and (c) of Schedule 1 to the GIPA Act.
On 9 February 2017 the Premier of New South Wales was joined as a party to the proceedings, as the Second Respondent.
In February 2017, the Respondents identified an additional document, being a Review Report by Deloitte numbering 31 pages, also produced by Deloitte as a result of its review of the NSW Firearms Registry ("the Review Report").
On 22 February 2017, pursuant to s58(3) of the GIPA Act, the First Respondent determined that access to the Review Report should be refused, on the basis that it was Cabinet Information having regard to cl 2(1)(b) and (c) of Schedule 1 to the GIPA Act.
The Respondents relied on: 1. an open affidavit of Cath Mackson dated 9 February 2017, 2. a confidential affidavit of Cath Mackson dated 22 February 2017, 3. Submissions dated 10 February 2017 4. Further open submissions dated 22 February 2017 5. Further confidential submissions dated 22 February 2017.
The Applicant relied on a folder of material filed on 23 January 2017 which included: 1. Submissions dated 19 January 2017; 2. Evidence in the form of exhibits to the submissions.

Relevant Legislation

Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure.
Under section 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 to the GIPA Act.
Clause 2 of Schedule 1 provides:

2 Cabinet Information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information (referred to in this Act as "Cabinet Information") contained in any of the following documents: (a) a document that contains an official record of Cabinet, (b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet), (c) a document prepared for the purpose of its being submitted to Cabinet for Cabinet's approval for the document to be used for the dominant purpose for which it was prepared (whether or not the document is actually submitted to Cabinet and whether or not the approval is actually given), (d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions, (e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet, (f) a document that is a preliminary draft of, or a copy of or part of, or contains an extract from, a document referred to in paragraphs (a)-(e). (2) Information contained in a document is not Cabinet Information if: (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence. (3) Information is not Cabinet Information merely because it is contained in a document attached to a document referred to in subclause (1). (4) Information is not Cabinet Information to the extent that it consists solely of factual material unless the information would: (a) reveal or tend to reveal information concerning any Cabinet decision or determination, or (b) reveal or tend to reveal the position that a particular Minister has taken, is taking or will take on a matter in Cabinet. (5) In this clause, "Cabinet" includes a committee of Cabinet and a subcommittee of a committee of Cabinet.

Section 106 of the GIPA Act provides a special procedure for decisions by the Tribunal in respect of Cabinet and Executive Council information, as follows:

106 Decisions about Cabinet and Executive Council information (1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter. (2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it. (3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter. (4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter. (5) The Premier is a party to any proceedings on an application under this section.

As the Respondent has noted, the procedure established by section 106 of the GIPA Act with respect to Cabinet Information was recognised by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]- [12]. At first instance in D'Adam v New South Wales [2014] NSWCATAD 68 at paragraphs [45] to [47], Senior Member Walker explained the operation of section 106 as follows: "45 No doubt in recognition of Cabinet's role and functioning as a collective, indirectly elected executive branch of government, s 106 establishes a special and very different decision-making matrix for claims to the Cabinet Information presumption. Not only is the tribunal "limited to deciding whether there were reasonable grounds for the agency's claim", but it is explicitly "not authorised to make a decision as to the correct and preferable decision on the matter" (s 106(1)). The tribunal's task is thus not to investigate the claim de novo or to engage in normal merits review. Its function is more analogous to that of a court undertaking judicial review. 46 In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". "Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them". 47 The respondent bears the onus of establishing that it had reasonable grounds for the claim (s 105(1)) and it must do so on the balance (meaning preponderance) of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, [65]; [2004] FCA 143; [2004] FCA 143; , 208 ALR 73, 86."
Accordingly, pursuant to section 106, with respect to documents the Respondent has identified as containing Cabinet Information, the Tribunal is limited to deciding whether there are reasonable grounds for the claim and is not authorised to make a decision as to the correct and preferable decision.
If, on the basis of the Respondent's evidence and submissions, the Tribunal is not satisfied that the Respondent had reasonable grounds for its claim in relation to any particular document, the Tribunal may review the document in accordance with section 106(2) of the GIPA Act.
The Premier must be given an opportunity to appear and be heard in relation to the matter, prior to the Tribunal rejecting a claim that information is Cabinet Information: s106(5) GIPA Act.
The First Respondent bears the onus of establishing that its decision to refuse access to the relevant documents was justified: s 105(1) GIPA Act.

Cabinet Information - general principles

The Respondent provided detailed submissions on the general principles involved in considering Cabinet Information, for which I am grateful. I accept those submissions.
The manner in which the GIPA Act reconciles the attainment of its objectives of access to information, with considerations of maintaining Cabinet confidentiality, was considered by the Tribunal in D'Adam. In particular, the Senior Member discussed the importance of Cabinet confidentiality as a matter of public interest, as follows: "[42]… For some functions of government, 'freedom from interference or scrutiny by members of the public.... is an essential aspect of the making of decisions' (Kline v Official Secretary to the Governor-General [2013] HCA 52 at [37], also [46] - [47]). The Court had earlier recognized a manifest public interest in keeping Cabinet deliberative processes confidential in Commonwealth v Northern Land Council (1993) 176 CLR 604, 615-616. 43 The full Federal Court case of Fisse v Secretary, Department of the Treasury [2008] FCAFC 188 concerned a freedom of information request for an executive summary of a working party report and for the report itself. The summary had been submitted to Cabinet. In his concurring judgment upholding a claim for Cabinet Information exemption, Flick J noted that, 'The importance of Cabinet as an institution of Executive Government, and the confidentiality ascribed by convention to its deliberations, has long been recognized. But little is known about its workings'. His Honour then quoted from Walter Bagehot's The English Constitution (2nd edn 1909) a passage noting that Cabinet meetings are secret in theory and in reality. Although the most powerful body of the state, it is 'a committee wholly secret. No description of it, at once graphic and authentic, has ever been given' (at [97]). 44 Flick J then set out with approval Blackburn CJ's description and explanation of Cabinet confidentiality in Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414, 421-22, which concluded with these words: 'Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilisation'."
The special value that the legislature places on maintaining the confidentiality of Cabinet processes is reflected in the conclusive presumption of an overriding public interest against disclosure for which s. 14(1) and Sch. 1, cl. 2 of the GIPA Act provides.
The defined categories of Cabinet Information under Sch. 1, cl. 2(1) reflect the scope of material to which the long-standing convention of confidentiality applies. The Cabinet process is considered at some length in the Cabinet Manual (particularly at page 7-11). It was also the subject of detailed evidence accepted by the Tribunal in Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101, as reflected in the following passages (at [31]-[32]): "[31] Mr Miller provided an outline of the Cabinet and Cabinet processes. He summarised the process as including many stages: Cabinet involves a pattern of deliberations which forms the process by which the Government makes decisions on major policy issues. It may include the processes under which a Cabinet submission ("Submission") is prepared by an agency for a Minister to submit to Cabinet, the lodgement of the Submission by a Minister to the Cabinet Secretariat, the circulation of the Submission to Ministers for consideration and advice, and the provision of advice on the Submission either to all Ministers or to a particular Minister for use in Cabinet. A Cabinet meeting at which a Cabinet decision is formally taken and recorded may be the culmination of this deliberative process, but the term Cabinet refers to a process that is broader than that particular meeting. ... Decisions of Cabinet are based upon advice it receives from Ministers, government officers and in some cases external consultants. Usually, the main piece of advice to Cabinet is in the form of a Cabinet Submission. A Cabinet Submission is a submission made to Cabinet or a Committee of Cabinet by the Minister responsible for the subject discussed in the Submission. It constitutes the submitting Minister's principal communication with Cabinet to assist its deliberations on the matters before it. The Submission reflects that Minister's views or opinion on the issue he/she presents to Cabinet. A Cabinet Submission is usually prepared by government officers but it is approved and signed by the Minister and represents the Minister's position. In some cases copies of external consultant's reports are annexed to a Cabinet Submission. Cabinet relies significantly on the advice and information it receives from Ministers, government officers and, on occasion, external consultants to make its decisions. As such it is vital to the development of public policy and to the good administration of the affairs of the State that Cabinet be able to receive confidential advice and information on the matters that come before it for consideration. In order to achieve this, it is necessary that Cabinet and its Ministers be able to be confident that advice and information which Ministers put before Cabinet and advice they receive from government officers or external experts will remain confidential. It is also necessary to ensure that the persons preparing the advice for Cabinet and Ministers are confident that any advice and views they seek from other Departmental officers or from external experts will remain confidential. [32] Mr Miller expressed the view that it is vital to the development of public policy and the good administration of the affairs of the State that: (a) Ministers in Cabinet are able to have a free and candid discussion on issues that come before it for determination; (b) Ministers and Cabinet are able to obtain full and frank advice from government officers and external experts on issues that come before a Cabinet for determination; (c) Those advising the Ministers and Cabinet are able to obtain full and frank advice and views of other government officers and external experts on matters in respect of which they are providing advice to a Cabinet."
According to D'Adam at [49]-[51], there are three conditions for the operation of clause 2(1)(b): 1. That there is "information"; 2. The information is "contained in a document"; and 3. That document must have been prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration.
The words "dominant purpose" have the same meaning as in sections 118-119 of the Evidence Act 1995 in relation to legal professional privilege. As noted in D'Adam at [51]: The purpose in question must be "causative in the sense that, but for its presence" the information would not have been prepared: Secretary to the Department of Treasury and Finance v Dalla Vella [2007] VSCA 11, [13], [24]

Submissions and evidence

The Applicant's written submissions and evidence addressed the dominant purpose test in relation to the Deloitte Report falling within clause 2(1)(b) and clause 2(1)(c). They do not address the Review Report.
The Applicant confirmed in oral submissions at hearing that he pressed for access to the Review Report on the same bases and for the same reasons.
In relation to the Deloitte report being considered under clause 2(1)(b), the Applicant submitted that the dominant purpose test would fail because: 1. He was given advice by the Parliamentary Secretary for Police and Emergency Services on 24 February 2014 that the report would be released publicly; 2. He was encouraged by the Parliamentary Secretary for Police and Emergency Services on 24 February 2014 to review the report findings once it became publicly available; 3. Other members of NSW Parliament also referred to the intention to release the report publicly.
The Applicant questioned whether Deloitte were instructed at the time of their appointment that the report was for submission to cabinet.
In relation to the Deloitte Report being considered under clause 2(1)(c), the Applicant questioned whether it was "realistic to believe that a relatively straight forward "audit" of a sub-unit of the NSW Police of this size would warrant the classification of 'Cabinet Information'". I take from his submission that the Applicant referred to the relatively short, inexpensive and limited audit of a small government sub-unit as a basis for demonstrating that it could not be important or significant enough to warrant classification as 'Cabinet Information'.
The Respondents submitted that the evidence of Ms Mackson demonstrated that: 1. the review was commissioned as a result of a Cabinet decision, 2. the review was to be conducted in terms endorsed by Cabinet; 3. Deloitte produced two reports as a result of that review: the Deloitte Report and the Review Report; 4. Both reports were responsive to the terms of reference; 5. Both reports were attached to Cabinet Minutes and submitted to Cabinet for consideration.
The Respondents submitted that in those factual circumstances, an inference should be drawn that the Reports were generated for the dominant purpose of submitting them to Cabinet for its consideration, as expressed in Schedule 1, Clause 2(1)(b) of the GIPA Act.

Findings

Ms Mackson's role as the Principal Policy Analyst for the Office for Police, NSW Department of Justice, included the supervision and direct responsibility for all firearms matters, and included the development of Cabinet submissions, amongst other duties. Her evidence remained firm that the dominant purpose for generating both of the reports was to submit them to Cabinet for its consideration. She also was firm in her opinion that the reports would only cease to be Cabinet Information when the Minister actually released them. In the circumstances, I accept her evidence.
In my view, the evidence clearly demonstrates that each of the reports constitutes information, contained in a document, prepared for the dominant purpose of submission to Cabinet.
The Applicant's evidence and submissions largely addressed the question of disclosure or intention to disclose the reports to the public. Schedule 1, Clause 2(2)(a) of the GIPA Act provides that the reports would not be "Cabinet Information" if "public disclosure of the document has been approved by the Premier or Cabinet".
The evidence demonstrates that the Applicant was given the expectation, through his interactions and communications with various Ministerial departments in the second half of 2014 and early 2015, that "the report of the review of the Firearms Registry" would be made publicly available "in the near future", "soon", "next week", "within the next week". That this did not occur is undisputed. By December 2015, the Applicant was informed that a decision had been made not to release the report.
It is unfortunate that the actual public release of the reports did not follow the statements made to the Applicant by parliamentary and ministerial officers. As the reports were not released, Clause 2(2)(a) of Schedule 1 to the GIPA Act did not apply and they remained Cabinet Information.
In my view, there are reasonable grounds for the First Respondent's claim that the Reports are documents which contain information, and that the Reports were prepared for the dominant purpose of submitting them to Cabinet.
That being the case, on balance, it is my view that the Respondents' evidence satisfies the requirements of section 106(1) of the GIPA Act.
Further, as Senior Member Walker noted in D'Adam v New South Wales Treasury at paragraph [73]: Having found that there were "reasonable grounds" in respect of both sets of information, the tribunal's jurisdiction is exhausted: IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79, [42]-[44]. It is thus not necessary to consider the application of the public interest test within ss 12 to 15 of the GIPA Act.
It follows that the determinations with respect to each of the Reports should be affirmed.

Orders 1. The decisions under review are affirmed.

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: 10 May 2017

At a glance

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Decision date

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Judgment (9 paragraphs)

Parties

Cases Cited (11)