Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Christopher v Independent Commission Against Corruption [2022] NSWCATAP 118 Hearing dates: 17 December 2021 Date of orders: 20 April 2022 Decision date: 20 April 2022 Jurisdiction: Appeal Panel Before: T Simon, Principal Member Dr J Lucy, Senior Member Decision: 1. Leave to appeal on the third to seventh grounds is refused. 2. The appeal is dismissed. Catchwords: APPEAL – Whether Tribunal erred in finding information to be "excluded information" Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Independent Commission Against Corruption Act 1988 (NSW) Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (repealed) Independent Commission Against Corruption Amendment Act 2015 (NSW) (repealed) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Duncan v Independent Commission Against Corruption [2014] NSWSC 1018 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Texts Cited: None cited Category: Principal judgment Parties: Andrew Christopher (Appellant) Independent Commission Against Corruption (Respondent) Information Commissioner (Intervenor) Representation: Counsel: N Owens SC and JC Conde (Appellant) C Spruce (Respondent) R Graycar (Intervenor) Solicitors: Webb Henderson (Appellant) Crown Solicitor (Respondent) Information and Privacy Commission NSW – Legal (Intervenor) File Number(s): 2021/00277330 Publication restriction: Non-disclosure and non-publication orders apply to material provided by the respondent Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 256 Date of Decision: 02 September 2021 Before: S Higgins, Senior Member File Number(s): 2020/00344517 REASONS FOR DECISION 1. Mr Christopher made an access application to the respondent (ICAC) for various categories of information, which included ICAC correspondence concerning legislative reform and documents concerning the effect of a High Court decision on certain ICAC findings. ICAC decided that the application was invalid, because it sought "excluded information" (a term which includes information that relates to ICAC's investigative functions). 2. On review, the Administrative and Equal Opportunity Division also found that most of the information sought by Mr Christopher is excluded information. It remitted ICAC's decision about one category of information to ICAC for reconsideration. 3. Mr Christopher appealed from the Tribunal's decision, contending (among other things) that the Tribunal had erred in finding that "excluded information" encompassed conduct amounting to lobbying or advocacy. 4. For the reasons which follow, we have decided to dismiss his appeal. Background 1. In July 2013, Commissioner Ipp made corruption findings under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) against certain directors of Cascade Coal Pty Ltd (Cascade Coal). 2. In October 2013, Mr McGuigan, Mr Atkinson and other directors of Cascade Coal applied to the NSW Supreme Court for judicial review of those findings. In July 2014, McDougall J dismissed the proceedings: Duncan v Independent Commission Against Corruption [2014] NSWSC 1018. 3. The directors of Cascade Coal applied to the NSW Court of Appeal for leave to appeal from McDougall J's decision. 4. Whilst that application was pending, the High Court handed down its judgment in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1. By majority, the Court construed the term "corrupt conduct" in the ICAC Act to be limited to conduct which could have affected the probity of the exercise of an official function by a public official, and held that it was insufficient if the conduct could have affected the efficacy of the exercise of an official function by a public official. This meant that ICAC's investigative powers were more limited than it had previously considered them to be. 5. On 20 April 2015, ICAC issued a public statement in response to the High Court's decision in ICAC v Cunneen in which it said that it had made a submission to the NSW Government to consider, as a matter of priority, amending s 8(2) of the ICAC Act to ensure that the section operated in accordance with its intended broader scope and making any such amendment retrospective. 6. On 23 April 2015, ICAC's solicitors wrote to the solicitors for the Cascade Coal directors, stating that it would consent to orders granting the Cascade Coal directors leave to appeal, allowing each appeal, setting aside the orders of the Supreme Court and declaring the corrupt conduct findings against each Cascade Coal director to be invalid. The parties subsequently provided consent orders to the Court of Appeal. 7. On 6 May 2015, the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (the Validation Act) was enacted and came into force. The Validation Act amended the ICAC Act so as to retrospectively validate anything done by ICAC that would have been validly done if the term "corrupt conduct" in the ICAC Act included conduct that adversely affects, or could adversely affect, the efficacy (but not the probity) of the exercise of official functions. 8. On the same day, as a result of the enactment of the Validation Act, ICAC withdrew its consent to the proposed consent orders in the Court of Appeal matter. 9. In September 2015, the Independent Commission Against Corruption Amendment Act 2015 (NSW) (the Amendment Act) was enacted. It amended the definition of "corrupt conduct" in the ICAC Act and made some other amendments to that Act. 10. On 22 June 2016, the Court of Appeal dismissed the appeals by each Cascade Coal director: Duncan v Independent Commission Against Corruption [2016] NSWCA 143. Access application 1. On 23 October 2020, Mr Andrew Christopher made an access application to ICAC under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) on behalf of Mr McGuigan and Mr Atkinson, the directors of Cascade Coal. Mr Christopher is a partner of the law firm, Webb Henderson, which acted for Mr McGuigan and Mr Atkinson. 2. Mr Christopher's application sought access, broadly, to communications between ICAC and members of parliament or journalists relating to the Validation Act or the Independent Commission Against Corruption Amendment Bill 2015 (NSW) (Amendment Bill); communications between ICAC and the Supreme Court relating to the Cascade Coal directors' proceedings; documents considering the impact of ICAC v Cunneen on the findings made against the directors of Cascade Coal; and documents referring to the effect of the Validation Act or the Amendment Bill on the ICAC findings against the directors of Cascade Coal or the Court of Appeal proceedings. 3. Mr Christopher sought access to the following categories of documents (omitting those which are not the subject of appeal): 1. Copies of any document sent by an officer, employee or representative of the respondent to any member of the NSW Legislative Assembly (MP) or any staff, employee or administrative assistant of any MP that relates to or makes reference to the Amendment Bill (including drafts) or the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act (Category One). 2. Copies of any document received from any MP or any staff, employee or administrative assistant of an MP by any officer, employee or representatives of the respondent that relates to or makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act (Category Two). 3. Copies of any document sent by any Commissioner or any representative of any Commissioner to any MP or any staff, employee or administrative assistant of any MP that relates to or makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act (Category Three). 4. Copies of any document received from any MP or any staff, employee or any administrative assistant of any MP by any Commissioner or any representative of any Commissioner that relates to or makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act (Category Four). 5. Copies of any document passing between any two or more employees, officers or representatives of the respondent or Commissioners which refer to or relate to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act (Category Five). 6. Copies of any document recording any discussion whether by telephone or any other means between any MP, or any staff, employee or representative of any MP, on the one hand and any employee, officer or representative of the respondent or any Commissioner on the other hand about the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act (Category Seven). 7. Copies of any document sent by any staff, employee or representative of the respondent, or any Commissioner or any representative of the Commissioner, to the Inspector of the respondent, or any staff, employee or representative of the Inspector of the respondent that makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act (Category Eight). 8. Copies of any document received from the Inspector of the respondent, by any staff, employee or representative of the respondent, or any Commissioner or representative of any Commissioner that relates to or makes reference to the Amendment Bill or to the Validation Act, or the matters the subject of the Amendment Bill or the Validation Act (Category Nine). 9. Copies of any document recording any communications between a Commissioner or any officer, employee, or representative of the respondent on one hand, and any journalist or media business on the other hand, that relates to or makes reference to the Amendment Bill or the Validation Act, or the matters the subject of the Amendment Bill or Validation Act (Category Twelve). 10. Copies of any document prepared, created, sent or received by any employee, officer or representative of the respondent or any Commissioner that records any consideration of the impact of the decision in the High Court of Australia in Independent Commission Against Corruption v Margret Cunneen [2015] HCA 14 on the findings of Commissioner David Ipp in his report of July 2013 about the directors of Cascade Cole (Category Thirteen). 11. Copies of any document prepared, created, sent or received by any employee, officer or representative of the respondent or any Commissioner that records any consideration of, or refers to, the effect of the Amendment Act or Validation Bill on the findings of Commissioner the Hon David Ipp in his report of July 2013 about the directors of Cascade Cole (Category Fourteen). 1. On 18 November 2020, ICAC decided that the information sought by Mr Christopher was "excluded information" within the GIPA Act and that Mr Christopher's application was not a valid application under that Act. Relevant legislative provisions 1. Section 43 of the GIPA Act provides that an access application cannot be made for "excluded information." It provides as follows: 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note— Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 1. Excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency (GIPA Act, Sch 4, cl 1). ICAC is an agency specified in cl 2 of Sch 2 to the GIPA Act. The functions of ICAC specified in Sch 2 are "corruption prevention, complaint handling, investigative and reporting functions". 2. When an agency receives an application for access to government information, the agency is to decide whether the application is a valid access application and is to either acknowledge receipt of the application as a valid access application, or notify the applicant that the application is not a valid access application (GIPA Act, s 51(1)). 3. The term "access application" is defined in s 4(1) of the GIPA Act to mean "an application for access to government information under Part 4 that is a valid access application under that Part." 4. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)). 5. 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 (GIPA Act, s 14(1)). Clause 6(1) of Sch 1 provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. Tribunal review 1. Mr Christopher applied to the Tribunal for review of ICAC's decision that the application was not a valid access application. 2. The Information Commissioner exercised her right to appear and be heard in the proceedings (GIPA Act, s 104(1)). 3. When the matter was before the Tribunal, ICAC indicated that it held fifteen documents which were responsive to Mr Christopher's access application. It also indicated that it did not hold any documents in response to categories 6, 10, 11 and 15 of his access application. It provided the Tribunal with the documents which were responsive to the access application, in confidence. The Tribunal made orders prohibiting the publication or disclosure of the confidential material. 4. The Tribunal was not satisfied that Mr Christopher's access application was, in its entirety, an invalid application under s 43(2) of the GIPA Act. However, it found that the information sought in categories 10, 11, 13, 14 and 15 of the access application is excluded information and that the application was, to that extent, invalid. 5. The Tribunal asked itself whether the information sought in the access application was "excluded information," being information relating to ICAC's functions of corruption prevention or complaint handling, or its investigative and reporting functions. The Tribunal found that the words "relate to" (in the definition of "excluded information") are of broad import (reasons at [92]). 6. The Tribunal considered, first, categories 11, 13, 14 and 15 of the access application, which sought information in documents considering the impact of the Cunneen decision and information in documents considering the effect of the Validation Act or Amendment Bill on ICAC's findings about the Cascade Coal directors and on the Court of Appeal proceedings. The Tribunal found that the information sought by Mr Christopher in these categories "relates to" ICAC's "corruption prevention and investigative" function and is thereby "excluded information" under cl 2 of Sch 2 of the GIPA Act (reasons at [102]). 7. The Tribunal was of the same view in relation to the information sought in category 10, concerning communications between ICAC and the Supreme Court (reasons at [112]-[113]). 8. However, it was "not satisfied" that the information sought in categories 1 to 9 and 12 is information that relates to ICAC's Sch 2 functions (reasons at [106]). It continued (reasons at [107]-[108]): "107 The information sought in this group is information that relates to the Validation Act and Amendment Bill. As is evident from the April 2015 press release issued by the respondent following the Cunneen Decision, the preparation of legislative instruments is not a function of the respondent, even where the legislation concerns the scope of its legislative powers and functions: see also ICAC Act s 2A which provides that the principal object of that Act is to constitute a Commission that is an 'independent and accountable body'. 108 Accordingly, I am not satisfied that the decision of the respondent in regard to Group 1 categories (i.e. category (1) to (9) and (12)) is not the correct and preferable decision and should be set aside. 109 By reason of my findings above, I also find that the applicant's access application in regard to this Group of categories is a valid application. 110 However, as I have explained above, this does not mean that the communications held by the respondent that are responsive to this Group of categories do not contain 'excluded information', or information for which there is another presumed conclusively overriding public interest against disclosure." 1. Having found that the access application was a valid application insofar as it sought information in categories 1-9 and 12, the Tribunal then examined the documents which were responsive to those categories of the application. It considered that there was a conclusive presumption that there is an overriding public interest against disclosure of the information responsive to categories 1-9, within s 14(1) of the GIPA Act, because it was "government information described in Schedule 1." That is, it found that the information "relates to" ICAC's "corruption prevention" and "investigative" functions under the ICAC Act, and that ICAC had not consented to the disclosure of the information: GIPA Act Sch 1 cl 6(1) (reasons at [118]). 2. In relation to the information responsive to category 12, communications between ICAC and any journalist or media business, the Tribunal said (at [124]): "I accept that there may be some information contained in these communications for which there is an overriding public interest consideration against disclosure either by reason of s 14(1) or 14(2) of the GIPA Act. There may also be an argument that the circumstances in which the communications were made that there has been a disclosure of the information, or the respondent consented to its disclosure." 1. The Tribunal remitted to ICAC for reconsideration of its decision in relation to category 12 of the access application. 2. In relation to categories 1 to 5 and 7 to 9 of the access application, the Tribunal found that the information in the documents which were responsive to those categories was "excluded information" and that there was an overriding public interest against the disclosure of that information under s 14(1) of and cl 6 of Sch 1 to the GIPA Act. 3. On 29 September 2021, ICAC refused access to the documents responsive to that category on the basis that there is an overriding public interest against the disclosure of that information. Appeal 1. Mr Christopher appealed from the Tribunal's decision concerning all categories of documents except categories 6, 10, 11, 15 (the categories in relation to which ICAC held no documents). 2. In a further amended notice of appeal, Mr Christopher identified his grounds of appeal as follows: 1. The Tribunal erred when construing the concept of "excluded information" under the GIPA Act by holding that that concept could include conduct which did not amount to a discharge of investigative or corruption prevention functions by ICAC - in this instance, including conduct by ICAC which amounted to lobbying, advocacy or similar conduct in relation to ICAC's powers (the first ground); 2. The Tribunal failed to address the parties' contentions in relation to s 111 of the ICAC Act and should have construed it as applying to ICAC's conduct which involves the discharge of investigative or corruption prevention functions and not applying to ICAC's conduct amounting to lobbying, advocacy or similar conduct in relation to ICAC's powers (the second ground); 3. The Tribunal erred in finding that the information in categories 13 and 14 of the access application was either excluded information for the purposes of s 43 of the GIPA Act, or excluded information for the purposes of s 14(1) of the GIPA Act (the third ground); 4. The Tribunal erred in finding that the information in categories 1-5 and of the access application was excluded information for the purposes of s 14(1) of the GIPA Act and, for category 12, required to be remitted to ICAC (the fourth ground); 5. The Tribunal erred in refusing access to the information in the documents responsive to categories 1-5 and 7-9 of the access application (the fifth ground). This ground was described in Mr Christopher's submissions as a "belts and braces" addition to his fourth ground; 6. ICAC was wrong in refusing access to documents responsive to category 12 (when making its decision on remitter) (the sixth ground). This ground was described in Mr Christopher's submissions as "in a sense surplus to" his fourth ground; 7. The Tribunal should have required ICAC to disclose to Mr Christopher copies of the fifteen documents which were responsive to categories 1-5, 7-9 and 12-14 of the access application (the seventh ground). 1. Mr Christopher's appeal was filed on time, within the 28-day appeal period: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 40; Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c). 2. Mr Christopher has a right to appeal from the Tribunal's decision on a question of law and may appeal on other grounds with the leave of the Appeal Panel: NCAT Act, s 80(2)(b). 3. As the Appeal Panel said in Collins v Urban [2014] NSWCATAP 17 at [84], leave to appeal is usually only granted in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. 1. Mr Owens SC, appearing for Mr Christopher, submitted that the Appeal Panel should look at the documents captured by the access application to see whether there had been any error in the factual process. We have reviewed all the documents which are responsive to the access application. Issue of construction 1. The Information Commissioner raised in her submissions the correctness of the Tribunal's approach of considering: 1. First, whether the application was not a valid access application because the application was for access to "excluded information" under s 43; and 2. Secondly, to the extent that the application was a valid access application, whether there was an overriding public interest against disclosure of the information which was responsive to the application, on the basis that the information was "excluded information" within cl 6 of Sch 1 to the GIPA Act. 1. The Information Commissioner submitted that this was not the correct approach because, if the information which was responsive to the application was "excluded information," then the application was invalid, meaning that cl 6 of Sch 1 had no work to do. Ms Graycar, for the Information Commissioner, pointed out that the agency was required by s 51(2) of the GIPA Act to determine the validity of an application within 5 working days of receiving the application. However, as indicated by s 51(4) of the GIPA Act, the agency could subsequently determine that an application it had initially considered to be valid was not valid. The Information Commissioner submitted that, if an agency specified in Sch 2 (a Sch 2 agency) determined that an application was seeking "excluded information" of the agency, the application was invalid to that extent. There was, in her submission, no scope for cl 6 of Sch 1 to apply to a Sch 2 agency in respect of "excluded information." Rather, cl 6 of Sch 1 could apply when an application was made to a different agency for the "excluded information" of a Sch 2 agency. 2. At the hearing of the appeal, ICAC adopted the Information Commissioner's submissions on this point. 3. There is no appeal before us contending that the Tribunal erred in finding that there was an overriding interest against disclosure of information which was "excluded information," instead of characterising the application as invalid to the extent that it sought that information. On that basis, it is not necessary for the determination of this appeal, to decide the issue. Was the Tribunal wrong to find that the information was excluded information? 1. Mr Christopher's first ground of appeal is, in summary, that the Tribunal was wrong to hold that the concept of "excluded information" could include conduct which did not amount to a discharge of investigative or corruption prevention functions by ICAC such as information relating to ICAC engaging in lobbying, advocacy or similar conduct. This ground raises a question of law and Mr Christopher may appeal as of right on this ground. 2. As ICAC submitted, however, the Tribunal did not hold that "excluded information" could include conduct which did not amount to a discharge of investigative or corruption prevention functions by ICAC (the apparent premise of the first ground). The Tribunal did not make any express finding to that effect. That is, on one view, a complete answer to this ground. However, having regard to the appellant's oral and written submissions, we have also considered this ground as contending that, in finding that information relating to ICAC engaging in lobbying or advocacy was "excluded information," the Tribunal misconstrued the definition of that term. As it was put in Mr Christopher's written submissions, the "categories of information sought by the appellant… seek information relating to ICAC engaging in lobbying, advocacy or similar such conduct." 3. Even interpreting the ground in the way most favourable to ICAC, we have some difficulties with it. The ground is based upon the premise that "excluded information" is a "concept" which is capable of including or excluding "conduct." The question of whether information is "excluded information" or not is properly to be approached by considering whether the term, as defined, applies to the information in question. That definition is not focused on the conduct of an agency, but is rather directed to the relationship between the relevant information and the agency's functions. 4. "Excluded information" of an agency specified in Schedule 2, such as ICAC, is defined to mean information that relates to any function specified in that Schedule in relation to the agency (GIPA Act, Sch 4, cl 1). The question of whether the information responsive to an access application relates to a function specified in Schedule 2 is not to be answered by asking the question of whether the document was created by or in response to ICAC when engaging in lobbying, advocacy or similar conduct. It is possible that information could relate to a function in Schedule 2 and also form part of a communication to or from ICAC whilst ICAC was engaging in lobbying or advocacy. 5. Mr Christopher submitted that, as ICAC had entered the "political fray," it was not discharging its investigative or corruption prevention functions, such that the information sought did not relate to its "corruption prevention, complaint handling, investigative and reporting functions." Mr Owens SC submitted at the hearing of the appeal that, when ICAC was attempting to obtain a wider jurisdiction and a new set of powers, that was not related to the discharge of ICAC's functions. That was trying to achieve a result not by the exercise of a function, but by political action. 6. The submission assumes that it is necessary to identify the character of particular conduct engaged in by ICAC in order to determine whether the information meets the definition of "excluded information" and also to determine whether ICAC is discharging its functions. That is not so. If a document written by ICAC concerned a proposed amendment to ICAC's functions (and could be construed as advocating for legislative change), the information in the document may nevertheless "relate to" ICAC's existing functions. A proposal to expand ICAC'S existing functions (for example) may, and probably would, contain information relating to ICAC's existing functions. 7. Whilst it was not necessary to do so to determine the first ground, we have examined the documents which are responsive to Mr Christopher's purported access application. We are not satisfied that the Tribunal has made an error in characterising the information in those documents as excluded information. 8. The first ground is accordingly dismissed. Was the Tribunal wrong not to address the parties' submissions about s 111 of the ICAC Act? 1. The second ground of appeal is that the Tribunal failed to address the parties' contentions in relation to s 111 of the ICAC Act and should have construed it as not applying to conduct amounting to lobbying, advocacy or similar conduct in relation to ICAC's powers. This ground raises a question of law and leave is not required to appeal on this ground. 2. The Tribunal was not required to address the parties' submissions concerning s 111 of the ICAC Act. 3. ICAC's primary position before the Tribunal was that Mr Christopher's access application was not a valid application. It also submitted, in the alternative, that there is an overriding public interest against the disclosure of all the responsive information. It relied upon s 14(1) of and cl 1 of Sch 1 to the GIPA Act, which provide, relevantly, that it is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by the ICAC Act. 4. Section 111 of the ICAC Act is a secrecy provision. Broadly speaking, it prohibits certain persons (including ICAC) from divulging information acquired in the course of the exercise of the person's functions under the ICAC Act, except in connection with the exercise of the person's functions under that Act. 5. ICAC submitted before the Tribunal that the effect of s 111 of the ICAC Act, read with s 14(1) of and cl 1 of Sch 1 to the GIPA Act, was to prohibit the disclosure of all of the information which is responsive to the access application. Mr Christopher made submissions to the contrary. 6. The Tribunal did not make an error by not dealing with the parties' submissions concerning s 111 of the ICAC Act. The Tribunal found that the application was invalid to the extent that it sought information in categories 10, 11, 13, 14 and 15, so did not need to consider whether there was an overriding public interest against disclosure of the information sought in those categories. For categories 1-5 and 7-9, the Tribunal found that there was an overriding public interest against disclosure of the information on a different basis (namely, that it was captured by cl 6 of Sch 1 to the GIPA Act). Accordingly, it was not required to consider whether the information was also information to which cl 1 of Sch 1 to the GIPA Act applied. 7. Mr Christopher submitted in his submissions in reply that the Tribunal "would have" made findings as to whether the documents were subject to the secrecy provisions of the ICAC Act, had it found that the documents did not contain excluded information. This does not make the failure to make such findings an error of law. 8. The appellant's second ground is dismissed. Did the Tribunal make an error in finding that the application was invalid in relation to categories 13 and 14? 1. Categories 13 and 14 broadly concern the impact of the Cunneen decision and the effect of the Amendment Act or Validation Bill on the findings made against the Cascade Coal directors. As will be recalled, the Tribunal found that the access application was not a valid access application insofar as it sought information in those categories. 2. The third ground does not raise a question of law. It is simply asserted, in this ground, that the Tribunal erred in concluding that the information sought in Categories 13 and 14 was "excluded information." In the written submissions, however, Mr Christopher identified an alleged error of law in relation to this ground, being that the Tribunal misconstrued the concept of excluded information. He submitted that the information related to the validity of ICAC's conduct and was not excluded information. 3. The Tribunal's reasoning was as follows (Reasons [102]-[103]): "102 In my opinion, the information sought by the applicant in his access application in the Group 3 and Group 4 categories (i.e. categories (11), (13), (14) and (15)) is information that 'relates to' the respondent's 'corruption prevention and investigative' function and is thereby 'excluded information' under cl 2 of Sch 2 of the GIPA Act. 103 I make this finding despite the respondent having disclosed that it does not hold any information in regard to category (11) or (15), because the information sought in the applicant's access application specifically seeks information that has a direct connection to the respondent's investigation, conducted pursuant to its functions under s 13 of the ICAC Act, and the findings it made against the Cascade Coal Directors as a result of the investigation." 1. It may be inferred that the Tribunal's finding was made having regard to the terms of the access application, rather than by reference to the documents which ICAC identified as being responsive to categories 13 and 14. That is, it found that: 1. information concerning the consideration of the impact of the Cunneen decision on ICAC's findings about the Cascade Coal directors; and 2. information concerning the effect of the Amendment Act or Validation Bill on ICAC's findings about the Cascade Coal directors, is information with a direct connection to ICAC's investigative functions. 1. At the hearing of the appeal, Mr Owens SC, for Mr Christopher, submitted that the Tribunal erred when considering whether the information "relates to" a function of ICAC within the definition of "excluded information." In his submission, the unlawful findings made by ICAC against the Cascade directors could not be "pursuant to" a function under the ICAC Act. In Mr Owens SC's submission, the Tribunal had misconstrued the width or breadth of the degree of connection conveyed by the words "relate to" in the definition of "excluded information." 2. Mr Owens SC submitted that the words "corruption prevention" in cl 2 of Sch 2 to the GIPA Act must refer to the prevention of corruption by the means conferred on ICAC by the governing legislation from time to time. As we understand it, his submission was that when considering whether the information is "excluded information" of an agency – that is, whether it relates to a function in Schedule 2 to the GIPA Act in relation to the agency – the question is to be answered by reference to the functions the agency had at the relevant time, without regard to functions conferred by any legislation operating retrospectively. 3. The approach Mr Owens SC invited us to take requires us to date the information and to consider the functions of an agency at that date. There are some potential difficulties with that approach. Whilst it may be possible to identify the date at which a document was created, that will not always be so. Further, the GIPA Act applies primarily to information, not documents. As already noted, "excluded information of an agency specified in Schedule 2" is defined to mean "information that relates to any function specified in that Schedule in relation to the agency". It would be necessary, on Mr Christopher's approach, to read into this definition some kind of requirement for a temporal connection between the information and the particular agency function, which has not been made express in the definition. 4. It is not necessary to resolve this issue, however, as we are not satisfied that Mr Christopher has identified any error, even if it is necessary to consider the character of the information at the time it was brought into existence. If ICAC's findings about the Cascade Coal directors were invalid, at the time they were made, that does not necessarily mean that information about the impact of the Cunneen decision or amending legislation on those findings does not "relate to" ICAC's corruption prevention or investigative functions. That information does, in our opinion, relate to those functions, because it concerns the question of whether the findings were made pursuant to those functions or not (having regard to subsequent developments). The information may "relate to" ICAC's functions even if it also relates to ICAC exceeding its functions. 5. For these reasons, if leave is required for the third ground (as we consider that it is), we would refuse it. If, taken with the submissions, the third ground raises a question of law, such that leave is not required, we would dismiss this ground. Was the Tribunal wrong to find that there was an overriding public interest against disclosure of information in categories 1-5 and 7-9? 1. In his fourth and fifth grounds, Mr Christopher challenged the Tribunal's conclusions that the information captured by categories 1-5 and 7-9 of his access application is "excluded information" and that there is an overriding public interest against disclosure of the information. The fourth ground simply asserted that this was an error. The fifth ground asserted that the Tribunal erred in refusing access to information in the documents on the basis that there was an overriding public interest against disclosure of the information. 2. Neither the fourth nor the fifth grounds identified any question of law. Leave is therefore required for these grounds of appeal. 3. As we understand it, the appellant relies upon the submissions advanced in support of the first and second grounds in relation to the fourth and fifth grounds. In circumstances where the first and second grounds have been dismissed, there is no basis for granting leave in relation to the fourth and fifth grounds. 4. The fourth ground is accordingly dismissed, insofar as it relates to categories 1-5 and 7-9 of the access application. The fifth ground is also dismissed. Category 12 - remittal 1. Part of the appellant's fourth ground is that the Tribunal erred in remitting the application to ICAC insofar as it concerned category 12. He said that this allowed ICAC to err in the manner described in its sixth ground; that is, by making a decision refusing access to the information on the basis that there is an overriding public interest against disclosure of the information. 2. The fourth ground (insofar as it relates to category 12) and the sixth ground do not identify a question of law. Accordingly, Mr Christopher needs leave to appeal on these grounds. 3. In his submissions, Mr Christopher said in relation to the fourth ground: "Category (12) relates to ICAC's communications with the media in relation of [sic] the Validation Bill and Validation Act. Again, the appellant has not inspected the responsive documents but he cannot conceive of how a document responsive to this category could, in its entirety, constitute 'excluded information' if that concept is understood and applied correctly at law. Communications with the media about ICAC's powers have nothing to do with ICAC discharging its functions." 1. This submission confuses the question of whether ICAC was discharging its functions at the time a document was created with the question of whether the information relates to a function of ICAC specified in Sch 2 to the GIPA Act. The two are distinct. It may be, for example, that ICAC is not discharging its functions when communicating with the media, but that the information in the communication itself relates to ICAC's functions. 2. We do not consider that any of the matters identified in Collins v Urban, as referred to above, apply in this case so as to justify the grant of leave. Nor are we persuaded that there are any other discretionary reasons which would warrant the grant of leave to appeal on ground 4, insofar as it relates to Category 12. 3. The sixth ground invites us to consider whether ICAC made an error on remittal. The proper course, if the appellant disagrees with that decision, is to seek review of it in the Tribunal. The Appeal Panel does not have power to consider ICAC's remittal decision on this appeal. 4. For these reasons, the fourth and sixth grounds are dismissed. No order for disclosure 1. The seventh ground is that the Tribunal should have ordered ICAC to disclose to Mr Christopher the information responsive to categories 1-5, 7-9 and 12-14 of his access application. 2. This ground does not identify any question of law. It is plainly the outcome the appellant sought if successful on any of his other grounds. 3. There is no basis for granting leave to appeal on this ground. The seventh ground is dismissed. Redactions 1. Mr Christopher submitted, in relation to various grounds, that the Tribunal erred by not ordering the disclosure of documents subject to the redaction of excluded information. This argument is not raised in the further amended Notice of Appeal and does not raise a question of law. 2. We do not consider that leave should be granted to argue this as a ground, in circumstances where Mr Christopher was legally represented and the Notice of Appeal was amended twice. It may be inferred, in any event, that the Tribunal considered that all of the information in the documents was excluded information. We are not persuaded that the appellant has demonstrated any error in that conclusion. Conclusion 1. For these reasons, we make the following orders: 1. Leave to appeal on the third to seventh grounds is refused. 2. The appeal is 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 Amendments 26 April 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW), the Counsel's last name is corrected from "Greycar" to "Graycar" in the Coversheet as well as in paragraph 45 of the decision. 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: 26 April 2022