Robertson v Minister for Planning [2008] NSWADT 240

CITATION: Robertson v Minister for Planning [2008] NSWADT 240

DIVISION: General Division

APPLICANT Ian Robertson PARTIES: RESPONDENT Minister for Planning

FILE NUMBER: 083017

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 25 March 2008

DATE OF DECISION: 27 August 2008

BEFORE: Montgomery S - Judicial Member

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

Cianfrano v Director General, Premier's Department [2007] NSWADT 216 Commonwealth v Northern Land Council (1993) 176 CLR 604 Egan v Chadwick (1999) 49 NSWLR 563 McGuirk v University of New South Wales [2007] NSWADT 204 CASES CITED: McGuirk v University of New South Wales (GD) [2008] NSWADTAP 17 P v Greater Western Area Health Service [2007] NSWADT 87 Re Anderson and Department of Special Minister of State (No 2) (1986) 11 ALN 239 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 University of New South Wales v McGuirk [2006] NSWSC 1362 University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8

APPLICANT I Latham, barrister REPRESENTATION:

RESPONDENT R Bhalla, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 By an application dated 14 December 2007, the Applicant made a request to the Minister for Planning ("the Respondent") for documents pursuant to section 36 of the Freedom of Information Act 1989 ("the FOI Act). His request was in the following terms: "I request access to document(s) concerning: (i) Draft bill or bills arising from, leading to or incorporating all or any of the proposals set out in the Discussion Paper 'IMPROVING the NSW planning system' dated November 2007. (ii) Draft legislation arising from, leading to or incorporating all or any the proposals set out in the Discussion Paper 'IMPROVING the NSW planning system' dated November 2007. (iii) Draft Explanatory Memorandum or Memoranda for draft legislation leading to or incorporating all or any of the proposals set out in the Discussion/Paper 'IMPROVING the NSW planning system' dated November 2007. (iv) Instructions to Parliamentary Counsel as to the drafting of bills and/or legislation and/ explanatory memorandum or memoranda arising from, leading to or incorporating all or any the proposals set out in the Discussion Paper 'IMPROVING the NSW planning system' dated November 2007." 2 The Respondent's FOI Coordinator and Policy Advisor, Ms Maree Keft, made a determination in respect of the request on 11 January 2008. She refused access to the documents pursuant to section 25(1)(a) of the FOI Act. Ms Keft made the determination to refuse access to the documents that she identified as falling within the scope of the application and stated: "The documents contain information that was prepared for submission to Cabinet. The documents also contain information that relates directly to recommendations made within a Cabinet Minute. Accordingly, the documents are exempt by virtue of clauses 1(1)(a), (b) and (e), clauses 9(1)(a)(i)(ii) and (b) and clause 10(1) of Schedule 1 to the Act. My determination of today' s date is that access to all documents captured by the scope of your application has been refused." 3 The Applicant has applied to the Tribunal seeking external review of that determination. It is common ground that there is no requirement for the Applicant to seek an internal review before bringing an application for external review before the Tribunal. 4 The parties agree that the matter should be determined on the basis of written material filed by the parties without the need for formal hearing in the matter. Each has filed written submissions and the Respondent also relies on a statement of evidence by Ms Keft. Applicable legislation 5 Section 16 of the FOI Act gives a person "a legally enforceable right to be given access to an agency's documents in accordance with this Act." Section 25(1)(a) of the FOI Act provides: 25 Refusal of access (1) An agency may refuse access to a document: (a) if it is an exempt document, or 6 Exempt documents are listed in Schedule 1 to the FOI Act. Clause 1 of Schedule 1 provides: 1 Cabinet documents (1) A document is an exempt document: (a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or (b) if it is a preliminary draft of a document referred to in paragraph (a), or (c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or (d) if it is an official record of Cabinet, or (e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet. (2) A document is not an exempt document by virtue of this clause: (a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or (b) if 10 years have passed since the end of the calendar year in which the document came into existence. (3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause. (4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet. 7 Clause 9 of Schedule 1 to the FOI Act provides: 9 Internal working documents (1) A document is an exempt document if it contains matter the disclosure of which: (a) would disclose: (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and (b) would, on balance, be contrary to the public interest. (2) A document is not an exempt document by virtue of this clause if it merely consists of: (a) matter that appears in an agency's policy document, or (b) factual or statistical material. 8 Clause 10 of Schedule 1 to the FOI Act provides: 10 Documents subject to legal professional privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document. The Respondent's case 9 The Respondent also relies on a statement of evidence by Ms Keft dated 14 March 2008. Ms Keft's evidence is that she identified four documents as falling within the scope of the FOI application. She did not distinguish between the documents requested in paragraph (i) and (ii) of the FOI application as she considered that they were a reference to the same document. She identified two documents as falling within the scope of paragraph (iv) of the FOI application. For convenience, I will adopt the respondent's reference to the documents as documents numbered 1, 3, 4a and 4b. 10 For reasons that will become apparent it is not necessary that I consider arguments based on Clauses 9 and 10 of Schedule 1 to the FOI Act. In relation to the Respondent's contention that the documents are exempt pursuant to Clause 1 of Schedule 1 to the FOI Act, Ms Keft stated: "Cabinet documents 10. I believe that the Cabinet documents exemption applies to all of the documents in the present application. 11. There are many drafts of documents 1 and 3. Drafts of those documents are still being regularly updated. They have been prepared, and are currently being prepared, for submission to Cabinet. It is intended that the final version of those documents will be submitted to Cabinet shortly (the exact date is at the discretion of the Cabinet Secretariat). I have identified the appropriate exemption categories in Schedule 1 of the Act as clause 1(1)(b) and (e). 12. In my experience, it is the usual practice for draft legislation and draft explanatory memoranda in respect of public bills to be submitted to Cabinet for approval before they are introduced into Parliament. 13. Both documents 1 and 3 have been prepared pursuant to the instructions in Cabinet minute 207/07 to Parliamentary Counsel which were deliberated upon at a Cabinet meeting on 31 October 2007 (see next paragraph). As such, their disclosure would make it possible from the information included in these drafts for a person to identify what was deliberated upon at the Cabinet meeting on 31 October 2007. 14. Document 4a formed part of the Cabinet Minute 207/07 deliberated and approved at Cabinet on 31 October 2007. Having been approved, the relevant part of the Cabinet Minute became instructions to Parliamentary Counsel to begin the process of drafting legislation. I have identified the appropriate exemption categories for document 4a in Schedule 1 of the Act as clause 1(1)(c) and (e). Having been approved by Cabinet, if the document were disclosed a person would easily be able to identify what was deliberated at the Cabinet meeting on 31 October 2007. 15. Document 4b is a more detailed set of instructions for Parliamentary Counsel prepared by the Legal Branch of the Department for Planning. As such, it contains information concerning the deliberations of Cabinet on 31 October 2007." 11 In relation to the Respondent's contention that the documents should not be released to the Applicant, Ms Keft stated: "17. The applicant's request directly relates to documents brought into existence because of the consideration given by the Minister and government to an update of the State's planning system. The government's deliberation is ongoing, and will continue even after the bill is introduced to parliament, since the government will have to respond to the debates and any proposed amendments. 18. I am of the opinion that it is not in the public interest that these documents be released. The documents disclose advice and instructions provided at the highest level of government, being instructions to and advice from the Parliamentary Counsel's Office concerning a proposal still under active consideration by the government." 12 On the basis of Ms Keft's evidence Mr Bhalla submitted that the Tribunal should find that documents 1 and 3 are drafts of documents that have been prepared for submission to Cabinet. Regardless of whether or not they have been submitted to Cabinet they are exempt documents pursuant to Clause 1(1)(b) of Schedule 1 to the FOI Act. 13 Mr Bhalla further submitted that Document 4a is a document that was part of Cabinet Minute 207/07 that was submitted to Cabinet on 31 October 2007 and as such it is an exempt document pursuant to Clause 1(1)(c) of Schedule 1 to the FOI Act. 14 In relation to Document 4b Mr Bhalla submitted that the document is a further, more detailed set of instructions for Parliamentary Counsel prepared by the Legal Branch of the Department of Planning, that it would be natural to expect such instructions to contain "matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet" and as such it is an exempt document pursuant to Clause 1(1)(e) of Schedule 1 to the FOI Act. He further submitted that the evidence is that it does indeed contain such information about the Cabinet meeting that took place on 31 October 2007. 15 The Applicant has conceded that each of the documents is an exempt document pursuant to Clause 1(1)(e) of Schedule 1 to the FOI Act. The issue to be determined is therefore whether or not the documents should be released regardless of the fact that they are exempt. 16 In University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] Nicholas J held that section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. The respondent submits that the decision in McGuirk is incorrect and that the Tribunal does not have discretion to release exempt documents. However, it proceeded on the basis that McGuirk presently binds the Tribunal and argued that the correct and preferable decision is that the documents should not be released to the Applicant. 17 Mr Bhalla points to a number of authorities in support of submission that the courts have long recognised that a high degree of protection attaches itself to Cabinet documents. This is due to the fact that our system of responsible government is contingent on the "collective responsibility" of Ministers to Cabinet: see, for example, Egan v Chadwick (1999) 49 NSWLR 563 per Spigelman CJ at 575. In Commonwealth v Northern Land Council (1993) 176 CLR 604 at 617 the High Court commented that the unfettered development of governmental policy by Cabinet is essential to the Australian system of government. 18 Mr Bhalla submitted that this policy development would be inhibited by an undue disclosure of documents created for the purpose of or in the course of the Cabinet developing policy. He referred to comments by Deputy President A N Hall in the Federal Administrative Appeals Tribunal decision of Re Anderson and Department of Special Minister of State (No 2) (1986) 11 ALN 239, at paragraph 20 n regard to section 34 of the Commonwealth FOI Act that "It is a long-established principle of responsible government that the deliberations of Cabinet are secret … Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilization." 19 Furthermore, he submits that in the present context, the disclosure of the material would not be in the public interest because such disclosure would prejudice the proper working of government. This is due to the recognised public interest in maintaining Cabinet confidentiality. In the present case, the documents relate to the implementation of a proposal decided by Cabinet into a Bill, to be debated in Cabinet. He points to the fact that the communications have taken place at a high level, the sensitivity of the process surrounding the implementation of legislation and the fact that the Minster's Office was engaged in the implementation of policy. 20 Mr Bhalla referred to consideration of the test for the application of the residual discretion by Handley J M in Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 where he stated at paragraph [48]: "48 The Hulls decision [ Department of Premier and Cabinet v Hulls [1999] VSCA 117] is, in my opinion, instructive for two reasons. First, in cases where exercise of the residual discretion is in issue, the Tribunal must first consider whether particular documents are exempt under the Act, and only if it finds documents to be exempt should it then consider whether to exercise the residual discretion. Second, the discretion should only be exercised where there are strong grounds justifying the overriding of an exemption. In NSW, the public interest is a relevant matter in determining whether there strong grounds justifying exercise of the discretion, and this should be considered in the light of the objects of the FOI Act, set out in s 5 (see also Dezfouli v Department of Corrective Services [2007] NSWADT 25)". 21 This view was developed further by Handley J M in P v Greater Western Area Health Service [2007] NSWADT 87 where he stated at paragraph [39]: "39 In Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55, at par 44 ff, I discussed other relevant case law and how, in my view, the discretion should be exercised. First, in cases where exercise of the residual discretion is in issue, the Tribunal must first consider whether particular documents are exempt under the Act, and only if it finds documents to be exempt should it then consider whether to exercise the residual discretion. Second, the discretion should only be exercised where there are strong grounds justifying the overriding of an exemption. The approach to be taken is one of balancing the competing interests involved according to the words of the Act, bearing in mind the stated objects of the Act: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at par 151. In NSW, the public interest is a relevant matter in determining whether there are strong grounds justifying exercise of the discretion, and this should be considered in the light of the objects of the FOI Act, set out in section 5". 22 Mr Bhalla also referred to the decision in Cianfrano v Director General, Premier's Department [2007] NSWADT 216 where the Tribunal's President provided the following guidance as to the exercise of the discretion at paragraph [24]: "24 At this early point in the exercise of this power, the following principles to guide the exercise of the discretion have emerged: (1) The Tribunal must first ascertain whether the matter is exempt matter. (2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption. (3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in section 5. (4) Even in the case of matter that falls within one of the 'restricted documents' categories of exemption (see cll 1 (Cabinet documents), 2 (Executive Council documents) and 4 (Documents affecting Law Enforcement and Public Safety) of Schedule 1) the only absolute exemption arises where the Minister has granted a certificate pursuant to section 59. (5) In the case of restricted documents, particular account should be taken of the concern addressed by section 5(2)(b), i.e. whether or not a restriction of access is 'reasonably necessary for the proper administration of government'. 23 Mr Bhalla submits that once a respondent has made out the exemption, the onus of proof shifts and the Applicant must persuade the Tribunal to exercise the discretion to release the documents. In support of this submission he relies on my decision in McGuirk v University of New South Wales [2007] NSWADT 204. He argues that the Applicant in these proceedings has not raised any matters in support of the exercise of the residual discretion, and the respondent is not aware of any matters that would support the exercise of the discretion. The Applicant's case 24 In his application to the Tribunal the Applicant stated that he is seeking access to documents in relation to a discussion paper "Improving the NSW Planning System". He says that the discussion paper contains more than 90 recommendations to alter the planning system in NSW and purportedly provides for a consultative process. He contends that the exemption is inconsistent with the consultative process outlined by the Minister, that it is in the public interest that genuine public participation in the processes of government decision-making is promoted and that it is in the public interest that government decision-making is transparent and accountable. 25 The Applicant argues that release of the documents will encourage public participation in decision making by allowing early comment as to the legislative proposals set out in the documents. 26 Mr Latham filed written submissions on behalf of the Applicant in the following form: "1. The applicant does not wish to place any evidence before the Tribunal. 2. The applicant agrees that the application can be determined 'on the papers'. 3. The applicant sought a number of documents from the Minister for Planning broadly describable as draft bills, legislation, explanatory memoranda and instructions to Parliamentary counsel leading to or incorporating all or any of the proposals set out in the Discussion Paper 'IMPROVING the NSW planning system' dated November 2007. 4. It is clear from the evidence and submissions of the Minister that: i. There was a Cabinet meeting on 31 October 2007 (Statement of evidence paragraph 13). ii. At that meeting, the Cabinet deliberated upon and approved the instructions to Parliamentary Counsel as to the drafting of bills and/or legislation and/or explanatory memoranda arising from, leading to or incorporating any of the proposals set out in the discussion paper "IMPROVING the NSW Planning System" (Statement of evidence paragraph 14, Submissions paragraph 16). iii. There was also a more detailed set of instructions for Parliamentary counsel that arose from the Cabinet Meeting (Statement of Evidence paragraph 15). 5. The applicant concedes that Cabinet documents attract a high degree of protection. On the basis of the evidence that the instructions to parliamentary counsel were approved at the Cabinet meeting; the applicant concedes that they would be exempt. 6. On this basis, the applicant concedes that it is not necessary to go to the internal working papers or legal professional privilege exemptions. 7. The applicant is content for the Tribunal to make a determination in the terms set out in paragraph 1. - 6. above." Discussion 27 In my view the Applicant has correctly conceded that the documents are exempt pursuant to Clause 1 of Schedule 1 to the FOI Act. The remaining question for determination is whether the Tribunal should exercise its discretion under section 25(1)(a) of the FOI Act to give the Applicant access to the disputed documents even though they are exempt documents. 28 The Appeal Panel examined the nature and extent of the discretion in the decision in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8. The Appeal Panel stated at paragraph [18]: "18 [T]he Supreme Court in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 … provide useful guidance as to the nature and extent of the Tribunal's powers. As with most discretionary powers, the decision maker must identify and weigh relevant considerations before making a decision. The FOI Act requires discretions be exercised, as far as possible, so as to facilitate the disclosure of information: section 5(3)(b). Consistently with the objects of the FOI Act, and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered that they were "reasonably necessary for the proper administration of the Government". In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong: See Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55." 29 A differently constituted Appeal Panel again considered the issue of the discretion in McGuirk v University of New South Wales (GD) [2008] NSWADTAP 17. In relation to the onus of proof the Appeal Panel stated at paragraph [40]: "40 The onus of establishing that the documents should not be released is on the University: FOI Act, section 61. Contrary to Mr Singleton's submission, that means that even if Mr McGuirk has not put forward a sufficient reason for releasing the document, the Tribunal may nevertheless come to the view that the University should have exercised its discretion to give access to the document." 30 In University of NSW v McGuirk (No 2) [2008] NSWADTAP 8 at paragraph 18, the Appeal Panel held that a relevant consideration when exercising the residual discretion is whether there is a reason, particular to the circumstances of the case, for giving access to documents: "That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong ..." 31 I agree with the Respondent that a high degree of protection attaches itself to Cabinet documents. There must be special, overriding or strong reason to override that protection. 32 There is no doubt that it is in the public interest that genuine public participation in the processes of government decision-making be promoted or that it is in the public interest that government decision-making is transparent and accountable. However, in the present case I am not satisfied those are sufficient reasons to displace the assumption that the nondisclosure is reasonably necessary for the proper administration of Government. That being the case, it is my view that the correct and preferable decision is that the documents should not be released to the Applicant. Discussion The decision under review is affirmed.