Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Atkinson v Department of Premier and Cabinet [2023] NSWCATAD 205 Hearing dates: 22 and 29 November 2022 Date of orders: 29 November 2022 Decision date: 02 August 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: (1) The application by the Information Commissioner to be provided with an unredacted copy of the respondents' submissions and affidavit of Kathryn Boyd filed 28 September 2022 is refused. (2) Any part of the hearing in which evidence and argument will be presented which would disclose the confidential material contained in the respondents' submissions and affidavit of Kathryn Boyd filed 28 September 2022 is to be held in the absence of the Information Commissioner, the applicant, the applicant's representatives and members of the public. Catchwords: INTERLOCUTORY ORDER – administrative review - Government Information – application by Information Commissioner to be provided with respondent's confidential material and to appear at confidential hearing – role of Information Commissioner – Cabinet information Legislation Cited: Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288 Saggers v Environment Protection Authority [2013] NSWADT 109 Shvetsova v University of New England [2015] NSWCATAD 49 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Texts Cited: None cited Category: Procedural rulings Parties: John Atkinson (Applicant) Department of Premier and Cabinet & (First Respondent) Premier of New South Wales (Second Respondent) Also heard: Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009) Representation: Counsel: S Hoare (Applicant) R Graycar (Information Commissioner) Solicitors: Webb Henderson (Applicant) Crown Solicitor (First Respondent and Second Respondent) File Number(s): 2022/00200122 Publication restriction: Nil REASONS FOR DECISION 1. John Atkinson sought review of a decision made by the Department of Premier and Cabinet (the Department) to refuse access to information which he requested under the Government Information (Public Access) Act 2009 (the GIPA Act). In all, the Department refused access to 10 documents falling within the scope of Mr Atkinson's request. Access to the information was primarily refused on the basis that it is subject to a conclusive presumption of an overriding public interest against disclosure as the information either contains Cabinet information or is subject to a claim of legal professional privilege: see cll 2 and 5 of Schedule 1 to the GIPA Act. One document is also said to be "excluded information": Sch 1, cl 6. 2. Mr Atkinson applied to the Tribunal for an administrative review of the decision of the Department. As some of the information is said to be Cabinet information, the Premier of New South Wales is automatically a party to the proceedings: s 106 GIPA Act. The Information Commissioner exercised her right to appear and be heard in this matter under s 104(1) of the GIPA Act. 3. As is usual practice, directions were made by the Tribunal for the filing and serving of evidence and submissions by Mr Atkinson and the respondents. The Information Commissioner was directed to file any submissions one week after the parties had filed their material. The matter was set down for hearing on 7 December 2022. 4. On 28 September 2022 the respondents filed an affidavit of Kathryn Boyd, Deputy Secretary, General Counsel of the Department and written submissions. Open versions of the affidavit and submissions, which contain certain redactions, were filed with the Tribunal and were provided by the respondents to Mr Atkinson and the Information Commissioner. The Tribunal was also provided with full versions of the affidavit and submissions on a confidential basis (the confidential material). The respondents state that the redacted material in the open versions of the affidavit and submissions refer to the evidence and their disclosure beyond the Tribunal would reveal information with respect to which it was said there was an overriding public interest against disclosure. 5. When filing the confidential material with the Tribunal, the respondents sought an order: 1. pursuant to s 107 of the GIPA Act that evidence be received and argument be heard in the absence of the applicant, the applicant's representatives and the public so as to preserve the confidentiality of the matters contained within the confidential material and prevent the disclosure of information for which there is an overriding public interest against disclosure; and 2. pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) prohibiting the publication or broadcast of any report of that part of the proceedings pertaining to the information the subject of the overriding public interest against disclosure, the publication of that evidence and submissions, and the disclosure of that evidence and submissions to the applicant and the applicant's representatives. 1. On 16 November 2022, the Information Commissioner wrote to the Registrar of the Tribunal and advised that in exercising her right to appear and be heard in the proceedings under s 104(1) of the GIPA Act, she intended to appear and be heard in any part of the proceedings conducted in the absence of the applicant pursuant to s 107 of the GIPA Act. The Information Commissioner requested that, to assist her in participating meaningfully in the proceedings, she be provided with the confidential material. 2. The respondents objected to the Information Commissioner being provided with a copy of the confidential material and to the Information Commissioner participating in any confidential hearing in these proceedings. 3. The matter came before me on 22 November 2022 at which time the Information Commissioner made oral submissions in support of her application to be provided with the confidential material and to participate in any confidential hearing in these proceedings. The applicant also made brief submissions in this regard. The matter was adjourned to the following week to allow the respondents to make submissions in response. 4. On 29 November 2022 I refused the application by the Information Commissioner to be provided with the confidential material and that any part of the substantive hearing in which evidence and argument would be presented which would disclose the confidential material be held in the absence of the Information Commissioner, the applicant, the applicant's representatives and members of the public. These are my reasons for my decision made on the day. Unfortunately there has been a delay in doing so. Relevant legislative provisions 1. The Information Commissioner is appointed under the Government Information (Information Commissioner) Act 2009 (the GIIC Act) and her functions are set out in Part 3 of that Act. Section 14 of the GIIC Act provides that the Information Commissioner has such functions as may be conferred or imposed on the Commissioner by or under the GIIC Act or any other Act. The specific functions conferred on the Information Commissioner under Part 3 of the GIIC Act are: * dealing with complaints about the conduct of an agency in the exercise of functions under the GIPA Act; and * investigating and reporting on the exercise of any functions of one or more agencies under the GIPA Act, including the systems, policies and practices of agencies (or of agencies generally) that relate to functions of agencies under the GIPA Act. 1. In exercising her functions under Part 3 of the GIIC Act, the Information Commissioner is able to exercise certain coercive powers given to her by Division 4 of Part 3. Of relevance to this matter is that under s 25 of the GIIC Act the Information Commissioner may require an agency to give her a statement of information, or to produce any record or other thing, or to give her a copy of any record. The Information Commissioner's powers under s 25 to require an agency to produce records etc do not extend to the provision of any information that is Cabinet information: s 30 GIIC Act. Cabinet information has the same meaning as in the GIPA Act. There are also certain limits with respect to the provision of privileged information: s 27 GIIC Act. 2. Section 35 of the GIIC Act provides that the Information Commissioner must not, in the exercise of her functions under that Act, disclose any information for which there is (or for which an agency claims there is) an overriding public interest against disclosure, as provided by the GIPA Act. 3. The Information Commissioner also has functions in connection with the operation of the GIPA Act. These are set out in s 17 of the GIPA Act as follows: (a) to promote public awareness and understanding of this Act and to promote the object of this Act, (b) to provide information, advice, assistance and training to agencies and the public on any matters relevant to this Act, (c) to assist agencies in connection with the exercise of their functions under this Act, including by providing services to assist with the lodgment, handling and processing of access applications, (d) to issue guidelines and other publications for the assistance of agencies in connection with their functions under this Act, (e) to issue guidelines and other publications for the assistance of the public in connection with their rights under this Act (including rights of review), (f) to review decisions of agencies pursuant to Part 5, (g) to monitor, audit and report on the exercise by agencies of their functions under, and compliance with, this Act, (h) to make reports and provide recommendations to the Minister about proposals for legislative and administrative changes to further the object of this Act. 1. The majority of these powers are directed towards the understanding and promotion of and compliance with the GIPA Act. The Information Commissioner also has review powers under s 17(f). The GIPA Act establishes a comprehensive decision-making and review scheme. An agency must make a decision on an access application within certain time frames and a dissatisfied applicant can seek internal review of the agency's decision. Following internal review, a person may seek review of a decision by the Information Commissioner. The Information Commissioner's powers on review are set out in Division 3 of Part 5 of the GIPA Act. The Information Commissioner has recommendatory powers and may make recommendations to the agency, including a recommendation that the agency reconsider the decision and/or a recommendation against a decision of an agency that there is an overriding public interest against disclosure of government information: ss 92-95. 2. The Information Commissioner must not, in the exercise of her review functions, disclose any information for which there is (or for which an agency claims there is) an overriding public interest against disclosure: s 91. 3. Division 4 of Part 5 of the GIPA Act makes provision for administrative review by the Tribunal under the Administrative Decisions Review Act Review 1997 of certain decisions made under the GIPA Act. Review by the Information Commissioner is not a necessary precursor to review by the Tribunal of a decision which has been internally reviewed: s 101. Nor is a person prevented from applying to the Tribunal if a review by the Information Commissioner is on foot. If such an application is made to the Tribunal, the Information Commissioner's review ends: s 101(3). 4. In any review by the Tribunal concerning a decision made by an agency under the GIPA Act, with limited exceptions not relevant to this matter, the agency bears the burden of establishing the decision is justified: s 105. Should the Information Commissioner be provided with the confidential material and participate in any confidential hearing? 1. The Information Commissioner states that her function under s 17(f) of the GIPA Act to review decisions is analogous to the powers of the Tribunal on review. In particular, she refers to s 91 of the GIPA Act and argues that this provision anticipates that the Information Commissioner, when conducting a review, will be provided with information for which there is claimed to be an overriding public interest against disclosure. 2. The Information Commissioner refers to Division 4 of Part 5 of the GIPA Act which concerns administrative review of agency decisions by the Tribunal. It is clear that s 104(1) permits the Information Commissioner to appear and be heard in review proceedings before the Tribunal. 3. Section 106 of the GIPA Act circumscribes the Tribunal's powers on review of a decision of an agency that agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information. The section provides: 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. 1. Section 107 of the GIPA Act sets out how the Tribunal is to deal with material and evidence containing information for which there is an overriding public interest against disclosure: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of — (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. 1. Section 107 makes clear that the applicant, the applicant's representative and the public may be excluded from any part of the hearing to prevent the disclosure of information for which there is an overriding public interest against disclosure. The Information Commissioner argues that she is not caught by this provision as she is neither the applicant nor the public but has a statutory function under the GIPA Act in reviewing the type of decision which is under review in this case. She submits that, had the legislature intended the Information Commissioner be excluded from receiving information or from hearing evidence, it would have made specific provision for such a course. 2. There was some discussion at the hearing about the role of the Information Commissioner in Tribunal proceedings. This had been given some consideration by the Administrative Decisions Tribunal in Black v Hunter New England Local Health District [2011] NSWADT 295 and Hurst v Wagga Wagga City Council [2011] NSWADT 3017. In both decisions the Tribunal stated that the Information Commissioner's role in administrative review proceedings is to assist the Tribunal with respect to the applicable law, relevant policies and guidelines, and on issues of interpretation of the GIPA Act: Black at [53], Hurst at [54]-[55]. The Appeal Panel in Rice Marketing Board for NSW v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [120] cast some doubt on whether the Information Commissioner's role before the Tribunal is confined as indicated in Black and Hurst. The Appeal Panel did not, however, express a concluded view. 3. In its submissions the Department strongly argues for a constrained role for the Information Commissioner and submits that, on a proper construction of the GIPA Act, the statutory regime only contemplates the Information Commissioner taking a more circumscribed role in Tribunal proceedings in line with the views expressed in Black and Hurst. In particular, the Commissioner argues that, as was recognised by the Tribunal in Black (at [54]), impartiality of the Information Commissioner in administrative review proceedings is necessary to ensure that her role as a review body under Division 3 does not become compromised. 4. What is clear is that the Information Commissioner, having exercised her right to appear and be heard, is not automatically a party to the proceedings: see Rice Marketing Board for NSW at [58]. As such, she does not have the full rights and responsibilities of a party. 5. The Rice Marketing Board for NSW case concerned the role and rights of a third party objector who was permitted to appear and be heard in the Tribunal on the basis they were a "person who could be aggrieved by a decision" of the Tribunal on a review: s 104(3) GIPA Act. In discussing the role of third party objectors who meet the test of being "a person who could be aggrieved" and thus have a right to appear and be heard in review proceedings in the Tribunal, the Appeal Panel at [55], referring to relevant provisions in the CAT Act, stated: Given NCAT's power to control its own procedure, and to inform itself as it thinks fit (NCAT Act, s 38(1) and (2)), the participation of persons appearing and being heard under s 104(3) may vary from case to case. It may extend to a full right to participation, including the ability to call evidence… 1. The Information Commissioner differentiates herself from the position of a third party objector on the basis that the Information Commissioner has functions under the GIPA Act, whereas a third party objector has no such role. It may be, in line with the views expressed by the Appeal Panel, that these functions may mean that the Information Commissioner can participate in Tribunal proceedings in a different manner to a third party objector. 2. Before me there was agreement between the parties and the Information Commissioner that the Information Commissioner's role before the Tribunal is not to engage with the merits of a decision or to exercise any review function (that being the function of the Tribunal). The Information Commissioner stated that she sought access to the confidential material and to be heard in relation to it in order to carry her own functions under the legislation. 3. For his part, Mr Atkinson submits that providing the Information Commissioner with access to the confidential material and permitting her to participate in any confidential hearing would be consistent with the object of the GIPA Act set out in s 3. Mr Atkinson noted that his ability to make submissions on the confidential material is limited and that provision of the material to the Information Commissioner would assist her to make relevant submissions. 4. The provisions in s 107 of the GIPA Act are directed towards the general obligation of the Tribunal not to disclose any information for which there is an overriding public interest against disclosure. As stated above, specific reference is then made to the applicant, the applicant's representative and the public being excluded from any part of the hearing to prevent the disclosure of information for which there is an overriding public interest against disclosure. There is no specific reference to any joined party or any person who has a right to be heard in accordance with s 104 of the GIPA Act, including the Information Commissioner. I do not accept the Information Commissioner's submission that, had the legislature intended the Information Commissioner be excluded from receiving information or from hearing evidence, it would have made specific provision for such a course. 5. I also do not consider that the review functions of the Information Commissioner under Division 3 of the GIPA Act are analogous to those of the Tribunal under Division 4. The Information Commissioner's powers are recommendatory, while the Tribunal's, are determinative. Indeed, the Information Commissioner must cease her review if an application for review is made to the Tribunal. Furthermore, the Tribunal's reviews are generally conducted in public and reasons published. The Information Commissioner's reviews do not have a public component. 6. In my view, specific reference is made to the applicant and their representative in s 104 to make clear that the usual presumption that an applicant may participate fully in proceedings is displaced by the particular provisions in the GIPA Act. The primary position in the Tribunal as established by the presumption set out in s 49 of the CAT Act is that proceedings are to be conducted in public. That provision is in conformity with the rules of procedural fairness and in ensuring that a party knows the case it has to meet: see, for example, Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [24]-[27]; Grant v Commissioner of Police [2020] NSWCATAD 158 at [16]-[24]. Section 107 of the GIPA Act, however, makes plain that an applicant may be excluded from part of the hearing and denied access to certain evidence if the Tribunal is of the opinion it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. 7. What then of the position of a joined party or a person who could be aggrieved by a decision of the Tribunal on a review and therefore has a right to appear and be heard or the Information Commissioner? I accept the submission of the Information Commissioner that she (and by extension the other persons referred to) are not, strictly speaking, "the public". In my view, however, none of these persons have a "right" to fully participate in the Tribunal proceedings if their doing so would mean the Tribunal did not comply with its obligation under s 107(1) not to disclose any information for which there is an overriding public interest against disclosure. 8. In determining the degree of participation in Tribunal proceedings dealing with a review application of persons other than the applicant and the respondent agency, as noted by the Appeal Panel in Rice Marketing Board for NSW, the Tribunal may act in accordance with its power to control its own procedure and to inform itself as it thinks fit. Whether that degree of participation extends to full participation, including in parts of the proceedings dealing with evidence concerning information in relation to which it is argued there is an overriding public interest against disclosure, will depend on whether the Tribunal is satisfied that it can comply with its obligation in s 107(1) to ensure it does not disclose any such information. 9. There may be circumstances where the Tribunal would be satisfied that participation of the Information Commissioner would not lead the Tribunal to offend against the obligation in s 107(1). The Information Commissioner states that the Tribunal could take some comfort from the obligation placed on her that she must not, in the exercise of functions in connection with a review, disclose any information for which there is (or for which an agency claims there is) an overriding public interest against disclosure: s 91. As the Department points out, however, s 91 applies to reviews by the Information Commissioner and there is no equivalent provision imposing any such obligation upon the Information Commissioner in Tribunal proceedings. That being said, there may be matters where an agency agrees that the Information Commissioner receives information which is not to be disclosed to the applicant under s 107 and where appropriate orders and undertaking may be made with respect to the confidentiality of that information. That situation might particularly arise where ethe Information Commissioner has been provided with the information when conducting her own review under Division 3 of the GIPA Act. 10. In these proceedings, however, the Department was strongly opposed to the Information Commissioner being provided with the information for which it is said there is an overriding public interest against disclosure and to her participation in any hearing where that information would be disclosed. This objection was based on the fact that the vast majority of the information said to be subject to an overriding public interest against disclosure is Cabinet information. 11. As set out above, Cabinet information is treated differently under the GIPA Act and the GIIC Act to other categories of information. Insofar as the Tribunal is concerned, s 106 of the GIPA Act modifies the Tribunal's jurisdiction with respect to Cabinet information and, indeed, limits the circumstances in which even the Tribunal may access Cabinet information for the purpose of undertaking a review. Section 30 of the GIIC Act acts to preclude the Information Commissioner in exercising her functions under that Act from obtaining or viewing any information, record or thing which would reveal Cabinet information. The Department submits that this serves as a compelling indication that the Parliament did not contemplate that the Information Commissioner would be able to access such material for the purpose of exercising her statutory right to appear and be heard in proceedings before the Tribunal. The Department goes so far as to say that the information the subject of these proceedings, being Cabinet information, is not information which may be the subject of an order compelling its provision to the Information Commissioner. 12. I agree that, at the very least, it would be anomalous that the Information Commissioner is specifically precluded from access to Cabinet information under the GIIC Act but is given access under the GIPA Act in a review before the Tribunal. I consider this to be a significant reason, particularly considering the strong confidentiality arrangements which attend the provision of Cabinet information generally and before the Tribunal, not to order that the Information Commissioner be provided with that information. 13. The other information to which access was also sought and which is said to be subject to a claim of legal professional privilege and, in respect of one document, that it is excluded information, deals with the same subject matter as the information claimed to be Cabinet information. On this basis, I refused the Information Commissioner's request for access to that information in addition to the Cabinet information. I also made an order precluding the Information Commissioner from participating in that part of the hearing where the confidential information was discussed. Orders 1. The application by the Information Commissioner to be provided with an unredacted copy of the respondents' submissions and affidavit of Kathryn Boyd filed 28 September 2022 is refused. 2. Any part of the hearing in which evidence and argument will be presented which would disclose the confidential material contained in the respondents' submissions and affidavit of Kathryn Boyd filed 28 September 2022 is to be held in the absence of the Information Commissioner, the applicant, the applicant's representatives and members of the public. ********** 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: 02 August 2023