Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Forbidden Foods Pty Ltd v Rice Marketing Board for the State of NSW (No 2) [2020] NSWCATAD 73 Hearing dates: 6 February 2020 Date of orders: 04 March 2020 Decision date: 04 March 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: L Pearson, Principal Member Decision: (1) The order made under s 64 of the Civil and Administrative Tribunal Act 2009 on 16 January 2020, as varied on 6 February 2020, is further varied: (a) Paragraph (1) (c) is varied to read: "(c) subject to (2) below, those paragraphs of these reasons identified as [Not for Publication] is prohibited." (b) Paragraph (2) is varied to read: "The submissions given in private and the record of that part of the proceedings conducted in private on 28 August 2019, and paragraph [107] of the confidential reasons, may be disclosed to the intervenor Ricegrowers Ltd t/as SunRice." Catchwords: GOVERNMENT INFORMATION – access application – whether overriding public interest against disclosure – publication of reasons – disclosure to intervenor Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Government Information (Public Access) Act 2009 Rice Marketing Act 1983 Cases Cited: Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 Frost v TAFE NSW (No 2) [2019] NSWCATAD 129 Transport for NSW v Searle [2018] NSWCATAP 93 Texts Cited: None cited Category: Procedural and other rulings Parties: Forbidden Foods Pty Ltd (Applicant) Rice Marketing Board for the State of New South Wales (Respondent) Ricegrowers Ltd t/as SunRice (First Intervenor) Information and Privacy Commissioner (Second Intervenor) Representation: Counsel: D Birch (Applicant) M Robinson SC with B Tronson (Respondent) Solicitors: Clarendon Lawyers (Applicant) Crown Solicitor (Respondent) King & Wood Mallesons (First Intervenor) C Emery, Information Commissioner (Second Intervenor) File Number(s): 2019/00140562 Publication restriction: Nil REASONS FOR DECISION 1. Forbidden Foods Pty Ltd seeks access under the Government Information (Public Access) Act 2009 (the GIPA Act) to documents held by the Rice Marketing Board of New South Wales (the RMB) relating to the export of rice grown in New South Wales. 2. Ricegrowers Ltd t/as SunRice (SunRice) has held the sole and exclusive export licence (SEEL) for the sale of NSW grown rice outside Australia since 2006, last renewed in 2017 for five years. The vesting regime under the Rice Marketing Act 1983 and the export arrangements have been the subject of review by the NSW Department of Primary Industries and are likely to be the subject of review before the expiry of the current arrangements in 2022. 3. The documents the subject of the administrative review application date from 2013 to 2018, and contain information provided by SunRice to the RMB and information obtained by the RMB through the independent verification by an independent auditor, in the context of the annual review undertaken by the RMB of the performance of SunRice as the SEEL holder. 4. SunRice exercised its right pursuant to s 104(3) of the GIPA Act to appear and be heard in the administrative review. The Information Commissioner exercised the right conferred by s 104(1) of the GIPA Act to appear and be heard. 5. The applicable legislation, and the relevant agreements between the RMB and SunRice and the NSW Department of Trade and Investment, Regional Infrastructure and Services, are discussed in the reasons published on 16 January 2020: Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18. Those reasons include at paragraph [34] a Table identifying each of the 30 documents to which access had been refused by the RMB. The parties reached agreement as to disclosure to Forbidden Foods of 8 of the documents in dispute, and orders were made by consent in relation to those documents (Documents 1, 3, 5, 7, 9, 23, 24 and 29). Documents 2, 4, 6, 8, 10, 11, 12, 13, 14, 15, 25, 26 and 27 remained in dispute. 6. As discussed at paragraph [68] in the earlier reasons, the RMB's submissions as to the public interest considerations against disclosure in relation to those documents were framed by reference to the different categories of documents at issue: SunRice's responses to the RMB's request for information in relation to performance metrics for the years 2013, 2014, 2015, 2016 and 2017 (documents 2, 4, 6, 8 and 10), referred to as the Reporting Letters; the five reports obtained by the RMB from the independent consultant for the years 2013, 2014, 2015, 2016 and 2017 (documents 11, 12, 13, 14, and 15), referred to as the Independent Verification Reports; correspondence between the RMB and SunRice in October 2015 (documents 25 and 26); and a letter from the RMB to the independent consultant dated 14 August 2017 (document 27). The orders made on 16 January 2020 were that access be provided within 28 days to those documents, with redactions to documents 2, 4, 6, 8, and 10. 7. As noted at paragraphs [40] and [41] of the earlier reasons, the Tribunal was provided with copies of Documents 1-30 on a confidential basis; and two confidential sessions were held in the absence of the applicant and the public. The first confidential session was held on 28 August 2019 after the conclusion of the first day's hearing, to hear submissions by SunRice; the representative of the RMB participated in that session. The second confidential session was held on 13 September 2019, and heard submissions by the RMB, in the absence of the applicant, SunRice, and the public. 8. An order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) in the following terms: Pursuant to s 64 Civil and Administrative Tribunal Act 2013, (1) Disclosure of: (a) the material filed by the respondent on a confidential basis (exhibits Confidential R1 and Confidential R2); (b) the evidence and submissions given in private and the record of that part of the proceedings conducted in private on 23 August 2019 (subject to (2) below) and 13 September 2019; and (c) those paragraphs of these reasons identified as [Not for publication] is prohibited. That material is not to be released to either the applicant or the public; (2) The submissions given in private and the record of that part of the proceedings conducted in private on 23 August 2019 may be disclosed to the intervenor Ricegrowers Ltd t/as SunRice. 1. The typographical error in that order was corrected pursuant to s 63 of the NCAT Act so that the reference to "23 August 2019" was amended to read "28 August 2019". Other amendments pursuant to s 63 of the NCAT Act were also made to correct typographical errors in paragraph [172](3) and (5) of the reasons. 2. The effect of the s 64 order was that the RMB was provided with the full version of the reasons for decision, and the applicant and intervenors were provided with the published version in which material in paragraphs [107], [108], [114], [132], [133], [134], [154] and [169] was redacted. SunRice was permitted access to the submissions and record of that part of the proceedings conducted in private on 28 August 2019, in which the representatives of both the RMB and SunRice participated, but not that part of the proceedings conducted in private on 13 September 2019 in which only the RMB participated. 3. On 28 January 2020 SunRice applied for an order that it be provided with a copy of the confidential version of the reasons for decision. At the hearing of that application SunRice further sought access to the record of the confidential hearing on 13 September 2019, and an extension of the time during which access to the documents was to be provided. 4. The RMB did not oppose the orders sought. Forbidden Foods did not object to SunRice having access to those parts of the confidential reasons in which documents provided to the RMB by SunRice were discussed; opposed any extension of time for provision of the documents; and opposed SunRice having access to the record of the confidential session on 13 September 2019. 5. The Tribunal notes that at the time the application was heard, the period in which any appeal from the decision of 16 January 2020 could be lodged in accordance with rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules) had not expired. In the intervening period both SunRice and the RMB have lodged an appeal from the decision of 16 January 2020. Submissions 1. In support of its application SunRice submitted that a copy of the confidential version of the reasons is required for it to consider its position in relation to any appeal. It already has copies of a number of the confidential documents and is therefore already privy to much of the confidential information the subject of the proceedings; it was present at one of the confidential hearings; and the basis on which both SunRice and the RMB contended that there was an overriding public interest against disclosure was to a significant extent founded on the confidentiality to SunRice of the information in question. It is therefore appropriate for SunRice to be provided with a copy of the confidential version of the decision or at least a copy revealing the reasons relating to information already within SunRice's knowledge and possession. 2. In written submissions SunRice submitted that to the extent that the confidential parts of the reasons disclose information which is the subject of documents 2, 4, 6, 8, 10, 25 and 26 there is no reason to prohibit disclosure to SunRice of those confidential parts of the reasons. To the extent that the confidential parts of the reasons disclose information which is the subject of any one or more of Documents 11 to 15 or 27, if the position of the RMB has changed as to whether that material ought to be kept confidential from SunRice then it may be appropriate to permit SunRice to have access to those parts of the reasons as well. Accordingly, SunRice seeks disclosure to it of a copy of the decision which includes the parts marked "Not for Publication", or in the alternative, to the extent that those parts disclose information which is the subject of Documents 2, 4, 6, 8, 10, 25 and 26. 3. In oral submissions SunRice confirmed that it is not seeking access to the documents themselves, but for disclosure to it alone of the confidential reasons. It is also seeking access to the record of the confidential hearing on 13 September 2019. 4. The RMB in written submissions supported SunRice's application that it be provided with a full copy of the confidential reasons, including those parts that relate to Documents 11 to 15 and 27 and which reflect submissions made at the confidential session on 13 September 2019. The RMB supported SunRice's position that the orders should be modified to allow disclosure of the confidential reasons to SunRice only, and not to the applicant or the public. 5. In oral submissions the RMB submitted that there is nothing of concern in the passages marked "Not for Publication", noting that disclosure would not be to the world at large. 6. Forbidden Foods did not object to SunRice having access to a copy of the decision revealing the reasons relating to information already within SunRice's knowledge and possession, on the basis that SunRice exercised its right under s 104(3) of the GIPA Act to appear and be heard in the proceedings, and SunRice had made submissions in opposition to disclosure of information concerning SunRice which is already within its knowledge. In oral submissions, Forbidden Foods submitted that that position is consistent with principles of open justice. 7. Forbidden Foods had a concern with disclosure of those parts of the reasons relating to documents 11 to 15 and 27, in particular in considering the position if it were to appeal against the decision to make redactions to some of the documents. Forbidden Foods opposed SunRice having access to the record of that part of the proceeding held in private on 13 September 2019, as SunRice was not a party and was not at that confidential session. 8. Forbidden Foods opposed the application to extend the period for provision of the documents, on the basis that those documents are needed for preparation of its submission on any review of the vesting arrangements. Discussion and findings 1. The order the subject of this application was made under s 64 of the NCAT Act, which provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The principles applicable to the exercise of the power conferred by s 64 were considered by PM Britton in Frost v TAFE NSW (No 2) [2019] NSWCATAD 129: 10. The principles governing the operation of the discretion to make orders under s 64 under were considered in DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92. In that decision, the Tribunal cited with approval State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, in which an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal, considered in some detail the principles governing the exercise of the power conferred by s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW), which is broadly equivalent to s 64 of the NCAT Act. The Appeal Panel in Dezfouli summarised at [81] the factors relevant to the exercise of the discretion to make a non-disclosure order: ... (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 11. The "presumption in favour of open justice" referred to by the Appeal Panel is a common law principle. In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 Kirby P explained (citations deleted): It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... 12. Commenting on that principle the Appeal Panel in Dezfouli stated at [61]: [It] is unthinkable that the word 'desirable' in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is 'desirable' under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting. 1. The proceedings are for administrative review of a decision relating to an access request under the GIPA Act, and there are additional factors relevant to disclosures to and by the Tribunal. 2. Part 4 Div 6 of the NCAT Act includes the following provision: 66 Effect of Government Information (Public Access) Act 2009 (1) General rule Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose information to another person or body if there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009. (2) Disclosure to person or body other than Tribunal The provisions of the Government Information (Public Access) Act 2009 continue to apply to the disclosure of information to any person or body other than to the Tribunal as if this Act had not been enacted. (3) Disclosure to Tribunal If a provision of this Act requires or authorises any person or body to disclose information to the Tribunal in relation to any proceedings before it and there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009: (a) the Government Information (Public Access) Act 2009 does not prevent the disclosure of the information to the Tribunal, and (b) the Tribunal is to do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the information to the Tribunal consents to the further disclosure. (4) Certificates by Secretary or General Counsel of the Department of Premier and Cabinet concerning Cabinet information The Secretary or General Counsel of the Department of Premier and Cabinet may certify that information is Cabinet information. Any such certificate: (a) is conclusive of that fact, and (b) authorises any person who would otherwise be required under this Act to lodge a document containing that information with (or disclose the information to) the Tribunal to refuse to lodge the document with (or disclose the information to) the Tribunal. (5) Definitions In this section: Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009. disclose has the same meaning as in the Government Information (Public Access) Act 2009. 1. Section 107 of the GIPA Act provides: 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 49(2) of the NCAT Act enables the Tribunal to order that a hearing be conducted wholly or partly in private if "satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason". The evidence of the three witnesses in these proceedings was heard in the public hearing on 28 August 2019, and final submissions by the parties and intervenors were heard in public on 20 September 2019. The Tribunal was provided with copies of all the documents remaining in dispute, and submissions were made in respect of those documents in the two confidential sessions, the first on 28 August 2019 in which SunRice and the RMB participated, and the second on 13 September 2019 in which only the RMB participated. 2. In proceedings for administrative review of a decision under the GIPA Act, the specific provisions relating to disclosure of information to the Tribunal in s 66 of the NCAT Act, and by the Tribunal in s 107 of the GIPA Act, qualify the principles based on the presumption of open justice otherwise applicable to proceedings in the Tribunal. Section 107 in particular restricts the manner in which the Tribunal is to hear evidence and argument, and what information it discloses in its reasons for decision. The practice of the Tribunal in redacting from published reasons for decision material that could disclose information for which there is an overriding public interest against disclosure is consistent with those provisions. 3. In these proceedings, for the reasons given in the earlier reasons, the Tribunal was not satisfied that the RMB, as the agency which made the decision under review, had discharged the onus imposed on it by s 105 of the GIPA Act and established that there was an overriding public interest against disclosure of the documents remaining in dispute, other than in respect of certain parts of Documents 2, 4, 6, 8, and 10. 4. That decision is now the subject of an internal appeal, by both the RMB and SunRice. Such an appeal may be made as of right on a question of law, or with leave of the Appeal Panel, on any other grounds (s 80(2)(b) NCAT Act). On the hearing of the appeal, the Appeal Panel may decide to deal with the appeal by way of a new hearing, and may permit fresh evidence (s 80(3) NCAT Act). Under s 81(2) of the NCAT Act the Appeal Panel may exercise all the functions conferred or imposed on the Tribunal at first instance when confirming, affirming or varying, or making a new decision in substitution for, a decision under appeal. A consequence is, as was the case in one of the decisions cited in the earlier reasons (Transport for NSW v Searle [2018] NSWCATAP 93), that it would be open to the Appeal Panel if it concluded that there were errors of law or grounds on which leave to appeal should be granted in respect of these proceedings, to reconsider the public interest considerations for and against disclosure of the documents, and to reach a conclusion that the agency had established that there was an overriding public interest against disclosure of some or all of the documents in question. In those circumstances, there would be an issue as to whether disclosure now to an intervenor in the proceedings of information determined on appeal to be information for which there is an overriding public interest against disclosure would comply with the obligations imposed on the Tribunal by s 107 of the GIPA Act. 5. The material redacted from paragraphs [107], [108] and [114] includes discussion of the content of documents 25, 26 and 27. The material redacted from paragraphs [132], [133], [134], [154] and [169] includes discussion of the content of documents 11 – 15. Documents 25 and 26 are correspondence between SunRice and the RMB, and are thus documents of which SunRice is aware. On the evidence before the Tribunal, none of the other documents originated with SunRice, and the evidence before the Tribunal was that the independent verification reports (documents 11-15) were not provided to SunRice. 6. The primary argument in support of the application by SunRice for access to the confidential reasons and the record of the second confidential session was based on its preparation of an appeal. It will be a matter for the Appeal Panel to consider the relationship between the internal appeal since lodged by SunRice, and the appeal lodged by the RMB. 7. In support of its application for access to the confidential reasons and the record of the second confidential session, SunRice observed that it already has copies of a number of the confidential documents that are before the Tribunal. It is not clear on the material before the Tribunal whether that observation applies to those documents that were provided by SunRice (documents 2, 4, 6, 8 and 10) and the October 2015 correspondence (documents 25 and 26), or whether SunRice has otherwise been provided with access to any of the other documents in dispute. The Tribunal proceeds on the basis, consistent with the position adopted by the RMB at the hearing, that it is the former. SunRice also observed that it was present at one of the confidential sessions; however it was not present at the second confidential session, and no application was made at the hearing that it be permitted to participate in that hearing. 8. SunRice further observed that the basis for the overriding public interest against disclosure for which it and the RMB contended was to a significant extent founded on the confidentiality of the information to SunRice. As discussed in the earlier reasons, both the RMB and SunRice contended that there is an overriding public interest against disclosure of the documents relying on the public interests against disclosure stated in cll 1(d), (f), (g), and 4(c) and (d) of the Table to s 14 of the GIPA Act. Whether information is confidential information, or whether it is provided to an agency in confidence, and whether information has competitive commercial value or relates to a person's legitimate business interests, are relevant factors in consideration of whether those public interests against disclosure apply. However, the public interests against disclosure identified in cll (1)(d), (f), (g) and 4(c) and (d), as discussed in the earlier reasons, are not limited to those factors. While the RMB does not oppose SunRice having access to the confidential reasons or the record of the second confidential session, its position at the hearing was to press its contention that there is an overriding public interest against disclosure. A central element of that contention was that the monitoring functions performed by the RMB, which require the provision of information to it by SunRice, and the annual audit by the independent consultant, is crucial to achieving the objects of the RMB, in particular object (b) of ensuring the best possible returns from rice sold outside Australia. 9. The Tribunal is not persuaded that a departure from the approach adopted in the order made on 16 January 2020 is warranted. That approach is consistent with s 107 of the GIPA Act, which requires that the Tribunal not disclose in its reasons for decision, or in authorising access to the record of the confidential session held with the RMB on 13 September 2019, information for which there could, depending on the outcome of the appeal, be held to be an overriding public interest against disclosure, in contrast to the conclusions reached at paragraph [172] in Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18. The only exception to that conclusion is in relation to the material redacted from paragraph [107] of the earlier reasons, which relates to information to which SunRice has had access in documents 25 and 26. 10. Documents 11-15 were discussed in submissions made by the RMB in the confidential session on 13 September 2019. For the same reasons as applicable to those parts of the confidential reasons discussing those documents, the Tribunal is not persuaded that SunRice should be permitted access to the record of that confidential hearing. 11. SunRice also sought a variation of order 1(2) made on 16 January 2020 to extend the time within which the documents are to be provided to Forbidden Foods, again based on fairness in preparation of the appeal. The RMB did not oppose that extension. Forbidden Foods opposed an extension, however did not indicate a specific date by which the documents would be needed for a submission it proposes to make on any review of the vesting regime. The Tribunal had specified a period of 28 days in order 1(2), to allow for the period within which an appeal could be lodged and a stay sought if required. At the time of hearing this application, no appeal had been lodged, and it was not clear how far preparation for an appeal may have progressed. The Tribunal decided on 6 February 2020 that a short extension of time was appropriate, and order 1(2) was varied accordingly. Order 1. The Tribunal orders: 1. The order made under s 64 of the Civil and Administrative Tribunal Act 2009 on 16 January 2020, as varied on 6 February 2020, is further varied: 1. Paragraph (1) (c) is varied to read: "(c) subject to (2) below, those paragraphs of these reasons identified as [Not for Publication] is prohibited." 1. Paragraph (2) is varied to read: "The submissions given in private and the record of that part of the proceedings conducted in private on 28 August 2019, and paragraph [107] of the confidential reasons, may be disclosed to the intervenor Ricegrowers Ltd t/as SunRice." ********** 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: 04 March 2020