Australia: NSW Government Bulletin - 7 December 2016

Last Updated: 13 December 2016
Article by Christine Jones and Kim Nguyen

Gold and Copper Resources Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267

Gold and Copper Resources Pty Limited (the Applicant) filed an application for administrative review with the Tribunal in relation to a decision of NSW Trade and Investment (the Respondent) to withhold documents sought by the Applicant under the Government Information (Public Access) Act 2009 (the GIPA Act). In withholding the documents, the Respondent relied on the conclusive presumptions of overriding public interest against disclosure listed in Schedule 1 of the GIPA Act, including clause 2 Cabinet information, clause 4 parliamentary privilege and clause 5 legal professional privilege.

Cabinet information

The Applicant argued that the factual material within the cabinet documents should not be withheld. The Applicant submitted that there was a two-step approach, 1, was there any solely factual material and 2, whether that information should be reasonably held in that context. It was noted that the evidence did not disclose that some of the information had been considered by Cabinet.

The Respondent argued that the documents were prepared for the dominant purpose of being submitted to Cabinet for Cabinet's consideration and should be withheld.

After reviewing the withheld documents, the Tribunal found that the material in question was captured by the provisions of Clause 2 of Schedule 1 of the GIPA Act, in particular subclause (1)(b), specifically that the character of the documents, the specific content and the caveats placed on the various emails and covering notes made it clear that the documents were prepared for the dominant purpose of being submitted to Cabinet.

Legal professional privilege

It was submitted by the Respondent that the contents of some of the withheld material contained litigation instructions and was therefore subject to legal professional privilege under section 119 of the Evidence Act 1995 (the EA). The Applicant submitted that the issuing of a press release by the Minister had the effect of waiving the privilege, consistent with section 122(3)(a) of the EA.

The press release stated the following:

"The Mining (Development Consent Consent) Amendment Bill 2013 – to be debated in the Legislative Council next week – will remove the threat hanging over most if not all mining leases across New South Wales...

The Government sought and obtained legal advice than an adverse decision in this court case could jeopardise investment and existing mines operations State-Wide."

The Respondent relied on the decision in Fenwick v Wambo Coal Pty Ltd (No.2)[2011] NSWSC 353 in submitting that the press release did not amount to waiver of privilege as it only disclosed the nature of the advice and not the substance or 'gist' of the advice.

The Tribunal found that the lack of disclosure of the reasoning in the press release provided a significant basis for limiting the degree of any waiver implied by the reference to the legal advice in the press release. On that basis, it was found that the press release issued by the Minister did not waive legal professional privilege.

Parliamentary privilege

This ground concerned 7 attachments to 3 emails. It was observed by the Tribunal, having regard to its own research, that one of those documents was the second reading speech and that it was incorrect for the Respondent to seek to withhold information which was open access information and on the public record.

The argument at the hearing focussed on whether the conduct of the Parliament extended to the conduct of the party room. The Respondent relied on Della Bosca v Arena [1999] NSWSC 1057 in which Levine J referred to the cases that support the proposition that the function and work of the party room and Parliament are linked and have a similar character when dealing with a matter ultimately before the chamber.

The Tribunal found that party room briefings were operationally analogous to the Cabinet and concluded: In my view it was the intention of the legislature in the drafting of the GIPA Act, to withhold release of information held by an agency, whereby it could be argued that it would infringe parliamentary privilege. Having examined the content of the information, it seems consistent with the intended purpose of the other exemptions (Cabinet), albeit the provenance of the information arises in the party room.

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In the media

Appointments to the High Court of Australia
His Excellency the Governor-General has accepted the advice of the Government to appoint the Honourable Justice Susan Mary Kiefel AC as the next Chief Justice of the High Court of Australia. Justice Kiefel will become Australia's thirteenth Chief Justice (29 November 2016). More...

NSW making it easier to solve legal problems
Attorney General Gabrielle Upton today released a consultation paper on plans to reform our state's civil justice system that will help people to get the best advice, information and services (28 November 2016). More...

In practice and courts

High Court of Australia
The High Court of Australia Bulletin [2016] HCAB 09 was published on 28 November 2016. More...

Productivity Commission: Data Availability and Use: Draft report
This draft report was released on 3 November 2016. You are invited to examine the draft report and to make written submissions by Monday 12 December 2016. The final report is expected to be handed to the Australian Government in March 2017. More...

NSW ICAC: Prosecution briefs with the DPP and outcomes
Tables showing outcomes of ICAC-related prosecutions and briefs with the Director of Public Prosecutions, updated 1 December 2016 (01 December 2016). More...

NSW ICAC: Department of Justice officers and contractors found corrupt
The ICAC has found that a former assistant director at the Department of Justice engaged in serious corrupt conduct by agreeing to improperly exercise his official functions by awarding contracts to two companies that were paid almost $1.3 million despite doing little or no work (22 November 2016). More...

NCAT is getting ready for the new strata laws
From 30 November 2016, all strata applications will be listed for hearing before a Tribunal Member. Applications under the previous Act were generally determined on the papers. The new Act also gives the Tribunal a number of new powers. These include making orders to comply with by-laws and imposing higher financial penalties on those who do not abide by the by-laws (28 November 2016). More...

NSW: Justice for Everyday Problems consultation paper
The paper, released on 28 November 2016, describes the kinds of problems dealt with by the civil justice system, the services available to resolve disputes, and sets out ideas for change. More... More...

NSW: New magistrates to join the NSW Local Court
11 new magistrates will join the bench of the Local Court of NSW. Seven of the new magistrates specialise in criminal law and four primarily in civil law (24 November 2016). More...

NSW: ADVOs now in plain English
New Plain English Apprehended Domestic Violence Orders (ADVO) will roll out state wide on 3 December so perpetrators have no excuses for not understanding the orders (24 November 2016). More...

NSW: New Rule - Supreme Court (Amendment No 430)
The Supreme Court (Amendment No 430) Rule 2016 No. 714 (NSW) amends the Supreme Court Rules 1970 No. 1 (NSW). The object of the amending Rule is to make provision, consequent on the abolition of the Industrial Court, for the practice and procedure to be followed in the Supreme Court in relation to applications concerning contraventions of dispute orders and the recovery of civil penalties under the Industrial Relations Act 1996 No. 17 (NSW). The amending Rule will commence on 8 December 2016.

NSW Case: Application for Recusal Refused
The Supreme Court of NSW decision in Jorgensen v Shorten [2016] NSWSC 1631 (17 November 2016), is an application for recusal, where there was an apprehension of bias, was refused. The Court found that a "fair minded lay observer" would conclude that a judge who had acted for one of the parties when at the NSW Bar would still bring an impartial mind to the resolution of issues between the parties.

NSW: New Rule - Uniform Civil Procedure (Amendment No 80) Rule
The Uniform Civil Procedure (Amendment No 80) Rule 2016 No. 715 (NSW) amends the Uniform Civil Procedure Rules 2005 No. 418 (NSW).The object of the amending Rule is to make provision, consequent on the abolition of the Industrial Court, for matters relating to: the originating process for certain proceedings commenced in the Supreme Court; the referral of certain proceedings commenced in the Supreme Court and the award of costs in certain proceedings in the Supreme Court that could have been commenced in the Local Court under the IR Act rather than the Supreme Court. The amending Rule will commence on 8 December 2016.

Published – articles, papers, reports

One giant leap or Houston, we have a problem: De-identification as a privacy enhancing tool
Does de-identification have the potential to protect people's privacy in large public data sets, or is it a privacy 'unicorn'? (21 November 2016). More...


Tsui v Commissioner for Fair Trading [2016] NSWCATOD 143
ADMINISTRATIVE REVIEW – Home Building Act – endorsed contractor licence – general building category – relevant industry experience.

Turner v Justice & Forensic Mental Health Network [2016] NSWCATAD 265
ADMINISTRATIVE LAW – access to government information – access application – reasonableness of searches - excluded information.

Gold and Copper Resource Pty Limited v NSW Trade and Investment [2016] NSWCATAD 267
GIPA Act – Government Information – Access –Confidential information – Legal Professional privilege- Whether privilege waived by disclosure of advice -Cabinet material – Privilege of Parliament.

Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278
GOVERNMENT INFORMATION -- access application -- building certifier's response to complaint – whether to be released – personal factors.


Proclamations commencing Acts

Bail Amendment Act 2015 No 44 (2016-721) — published LW 2 December 2016.

Crimes (Administration of Sentences) Amendment Act 2016 No 47 (2016-722) — published LW 2 December 2016.

Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 No 33 (2016-716) — published LW 1 December 2016.

Regulations and other miscellaneous instruments

Bail Amendment (Exceptional Circumstances) Regulation 2016 (2016-723) — published LW 2 December 2016.

Crimes (Domestic and Personal Violence) Amendment (Apprehended Violence Orders) Regulation 2016 (2016-718) — published LW 1 December 2016.

Election Funding, Expenditure and Disclosures (Adjustable Amounts) Further Amendment Notice 2016 (2016-724) — published LW 2 December 2016.

Proclamations commencing Acts

Crimes (Serious Crime Prevention Orders) Act 2016 No 15 (2016-694) — published LW 25 November 2016.

Regulations and other miscellaneous instruments

Liquor Amendment (Special Licence Conditions) Regulation (No 2) 2016 (2016-697) — published LW 25 November 2016.

Supreme Court (Amendment No 430) Rule 2016 (2016-714) — published LW 25 November 2016.

Uniform Civil Procedure (Amendment No 80) Rule 2016 (2016-715) — published LW 25 November 2016.

Bills assented to

Independent Commission Against Corruption Amendment Act 2016 No 65 — Assented to 23 November 2016.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Christine Jones
Kim Nguyen
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