Townley v Department of Planning, Housing and Infrastructure and Premier of New South Wales

Relevant Legislation

1. 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.
2. 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.
3. 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.
4. 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]."
5. Accordingly, pursuant to section 106(1) of the GIPA Act, with respect to documents the Respondent has identified as containing Cabinet Information, on an administrative review 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 the Tribunal is satisfied there are reasonable grounds, the Respondent's decision should be affirmed.
6. 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 request to review the document in accordance with section 106(2) of the GIPA Act.
7. 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.
8. 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.
9. The defined categories of Cabinet Information under cl 2(1) of Sch 1 of the GIPA Act, reflect the scope of material to which the long-standing convention of confidentiality applies. The Cabinet process is both the subject of evidence in these proceedings, including in the Cabinet Practice Manual, and has been accepted by this Tribunal in other proceedings involving consideration of whether records are or contain 'cabinet information': see, for example, Bennison v Department of Premier and Cabinet [2016] NSWCATAD 101, at [31]-[32].
10. The Respondent relies only on cl 2(1)(e) of Sch 1, that the record in dispute is: 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,
11. According to the Appeal Panel in Transport for NSW v Robinson [2018] NSWCATAP 123 (Robinson), which considered the application of cl 2(1)(e), there are three conditions for its application: 1. there must be a document prepared either before or after Cabinet's deliberation or a decision on a matter; 2. it must reveal or tend to reveal a defined position; and 3. the defined position is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet.
12. The Appeal Panel in Robinson made it clear that there is no requirement that Cabinet "had actually deliberated or made a decision on the matters referred to in the document" (at [24]).
13. A "defined position" is not necessarily a single position. In Lock the Gate Alliance v Department of Planning and Environment [2019] NSWCATAD 6 at [60]-[61], the Tribunal recognised that "Ministers routinely consider more than one position and their departments often recommend several options for consideration", and that sometimes "Cabinet itself requires Ministers to bring forward a range of options for its consideration". The Tribunal went on to say that the Appeal Panel's reference to a "defined position" in Robinson is not "a reference to a single position but simply to the position - whether that be one option or a range of options - which the Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter to Cabinet" (at [62]).

Consideration

1. The Applicant provided extensive submissions outlining her involvement in, and knowledge of, the background to PDNSW's CHJFRP and its funding. It is clear from her submissions that she is critical of the processes engaged by PDNSW and the expenditure of public funds, in circumstances where she believes it is being misspent to the detriment of local government: Funding arrangements are also of interest to local government since the provision of services such as sewerage, water and the like are a key local government function. This is particularly the case if the proposal includes a component of affordable housing for which developer contributions may not be levied and are therefore shifted directly onto Council. It would appear that PDNSW, in keeping with its powers under the Property and Development Act 2006 is pursuing without hesitation a large-scale residential/mixed use development primarily centred on Lots 10 and 11.
2. The Applicant submits that the record in dispute was prepared for the purpose of rezoning Lots 10 and 11 for the CHJFRP: It is contended that the Business Case was not a document prepared for the dominant purpose of being submitted to Cabinet but rather that the Business Case was required by PDNSW in its routine procedures of development to assess the financial costs and benefits of proceeding with the acquisition of the land and its rezoning in order to progress the development. It is submitted that PDNSW's intention to submit a Business Case to Treasury "outlining a range of funding options to deliver on the masterplan vision for the Precinct" is not for the purpose of seeking Treasury or Cabinet approvals, but rather to show how PDNSW proposes to fund the project and what profit-sharing arrangements might be made.
3. The Respondent does not rely on cl 2(1)(b), which is the "dominant purpose" clause, so the Applicant's submissions on that issue are not helpful.
4. The Applicant's submissions also took issue with the fact that the Respondent's decision maker did not review or consider the actual record in question, being the Business Case. The Respondent accepted that the decision-maker did not have the Business Case before her when she made the decision not to grant the Applicant access to it on the basis that it was "cabinet information". As submitted by the Respondent, the test is whether the Tribunal agrees, on the evidence before it, that the Agency had reasonable grounds to make its claim.
5. Contrary to the Applicant's submission, the Respondent's decision maker was not required to have taken into account "all relevant considerations", including consideration of the disputed record, as would be required under a judicial review. Nor is the Tribunal required to take into account "all relevant considerations" in these circumstances. Section 106(2) makes clear that if the Tribunal is not satisfied that the Respondent has demonstrated it had "reasonable grounds" that the information falls within the definition of "cabinet information" under cl 2 of Sch 1, the next step is for the Tribunal to request a copy of the disputed record. This demonstrates that, as a first step, the determination of whether there are "reasonable grounds" does not required actual consideration of the disputed record. In Cooper v NSW Ministry of Health [2018] NSWCATAD 37 I considered the application of cl 2(1)(e) and was not convinced on the Respondent's evidence and submissions in those proceedings that it had reasonable grounds that the information in question fell within cl 2(1)(e) of Sch 1. I therefore requested the Respondent provide me with the records in accordance with s 106(2) of the GIPA Act. Upon review of the remaining disputed records, I agreed the Respondent had reasonable grounds for classifying them as 'cabinet information' within the meaning of cl 2(1)(e) of Sch 1 to the GIPA Act.
6. Looking at each of the three steps required to apply cl 2(1)(e) to the information in dispute in these proceedings: 1. Is there a document prepared either before or after Cabinet's deliberation or a decision on a matter? 2. Does the document reveal or tend to reveal a defined position? and 3. Is the defined position one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet?
7. The Respondent's evidence - both "open", and "closed" or confidential - set out clearly the factual matters relevant to the Tribunal's determination of these questions. Although both of the Respondent's witnesses were cross-examined by the Applicant, there was no submission made by her as to the plausibility or veracity of their evidence, and no contrary factual evidence provided to the Tribunal. I accept the Respondent's evidence accordingly and set out below to what extent it satisfies the Tribunal that the disputed record is "cabinet information" within the meaning of cl 2(1)(e) of Sch 1 to the GIPA Act.
8. The confidential evidence provided by the Respondent is unnecessary to detail in these reasons for decision, save as to note that the closed affidavits contained further detailed information that was in the Business Case and its appendices, including what proposals and recommendations were made and by whom. I accept that evidence and note that the confidentiality orders sought over that evidence were appropriately sought. Section 107 of the GIPA Act provides that this Tribunal must ensure that it does not disclose any information for which there is an overriding public interest against disclosure, and provides a mechanism for receiving evidence and hearing submissions on that information in the absence of the public and the Applicant. I was, and am, satisfied that it was (and is) necessary and desirable to restrict disclosure of that evidence on the basis of its confidential nature, because disclosure would thereby disclose information for which there is an overriding presumption against disclosure, being fundamentally confidential cabinet information and deliberations. For the same reasons, orders under ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 are made in relation to the disclosure and publication of confidential evidence and submissions received by the Tribunal during these proceedings.
9. The Respondent's evidence is that PDNSW prepared a Business Case for the CHJFRP to comply with NSW Treasury's requirements for funding approval on a carry-forward basis, and for additional funding, for the 2024/2025 State Budget. That Business Case was initially finalised on or around 28 February 2023. PDNSW then developed a rezoning proposal associated with that Business Case, for reasons including to align with the Government's housing policy, and a short-form summary proposal as required by NSW Treasury for new policy proposals. The short-form summary proposal was submitted to Treasury on 29 November 2023.
10. NSW Treasury then required a "Final Budget Proposal" from PDNSW for the CHJFRP, including a Business Case and other evidence in support of the funding and investment required. The NSW Treasury policy guidance on the submission of business cases for new policy proposals over $10M relevantly states: To assist consideration by the Expenditure Review Committee (ERC) of Cabinet, agencies are required to prepare business cases for both recurrent and capital expenditure initiatives that fall withing [sic] the requirements set out here. The assessment of the business case will inform NSW Treasury's advice to ERC on an initiative. Treasury provides advice to the ERC on all submissions.
11. PDNSW engaged Ernst & Young to provide an updated cost benefit analysis, which was appended to the Business Case finalised on 28 February 2023 (and became Appendix C).
12. On 7 March 2024, PDNSW provided NSW Treasury with the Final Budget Proposal for the CHJFRP, which included the Business Case and its four appendices, and also included a specific recommendation. That is the disputed record which the Respondent claims is "cabinet information".
13. NSW Treasury then prepared its advice and submissions on the CHJFRP, for consideration by the Expenditure Review Committee (ERC) of NSW Cabinet. The Minister for Planning and Public Spaces and the Minister for Lands and Property made a joint Cabinet Submission to the ERC.
14. On the basis of the Respondent's evidence I find that the disputed record comprises documents prepared before Cabinet's (specifically ERC's) deliberation or a decision on a matter, specifically the ERC's consideration of the CHJFRP. It is clear on the basis of the confidential evidence before the Tribunal that the disputed record contains a "defined position" on the matter.
15. In relation to the question of whether "the defined position is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet", the Applicant submitted that the disputed record could not be critical to revealing Cabinet's position in circumstances where the document was completed almost 2 years ago. This submission seemed to be premised on the idea that the contents of the originally finalised Business Case of 28 February 2023, which was one of the four appendices forming part of the disputed record, had been superseded, or its contents had otherwise been revealed by Ministers providing public statements and updates in recent years. The Applicant referred broadly to statements made by the Minister for Lands and Property in this respect. However, I am not satisfied on the evidence before the Tribunal that any public statements have been made about the CHJFRP which reveal the content of the disputed record. The confidential evidence provided to me by the Respondent satisfies me that the disputed record contains a defined position that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter, in Cabinet.
16. I am therefore satisfied that the Respondent has discharged its onus of proving, on the balance of probabilities, that it had reasonable grounds to claim that the disputed record was "cabinet information" within the meaning of cl 2(1)(e) of Sch 1 to the GIPA Act and therefore subject to an overriding public interest against disclosure.

Orders 1. The Respondent's decision, to the extent that it refuses access to information on the basis that it is "cabinet information" pursuant to cl 2(1)(e) of Sch 1 to the GIPA Act, is 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: 21 January 2025