COPYRIGHT RESERVED

NOTE: Copyright in this transcript is reserved to the Crown. The reproduction, except under authority from the Crown, of the contents
of this transcript for any purpose other than the conduct of these proceedings is prohibited.
RSB:SND 80/18

IN THE NSW CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE AND EQUAL OPPORTUNITY DIVISION

SENIOR MEMBER DINNEN

5
NEWCASTLE: MONDAY 19 FEBRUARY 2018

2017/00333562 - NEWCASTLE EAST RESIDENTS ACTION GROUP INC v

NEWCASTLE CITY COUNCIL
10
DECISION

SENIOR MEMBER: It is the respondent’s obligation under the GIPA Act to

support its decision in the circumstances to deny access to the four documents

15identified under s 105. Bearing in mind the objects of the Act under s 3 and

the presumption of access in s 5, I have considered the evidence put before

me today. In relation to the evidence provided, I note that it was provided in

the form of two statements from the applicant and some annexures to its

submissions, and in the part of the respondent to some annexures to its

20submissions, but I am willing to accept those documents from both parties as

evidence, bearing in mind the provision in the subject Act to allow documents

and evidence before the tribunal, without having need to apply the Rules of

Evidence.

I accept the documents provided by the applicant demonstrate that there

25are some significant issues of public concern underlying the reasons for their

application to access the information sought and I just wanted to address

those briefly.

At paragraph 27 of its submissions the applicant identifies the concerns

that it has in relation to the conduct of the Newcastle Coates Hire 500 motor

30race, which that there has been no environmental impact statement or

assessment, no social impact statement or assessment, did not conduct open

5.19/02/18 1
 RSB:SND 80/18

and transparent community consultation, did not call for submissions. By its

own estimation, would cause harmful noise above acceptable limits inside

more than 30 dwellings. Regularly and consistently exceeded safe noise limits

for those attending the race and residents living inside the racing area. Forced

5residents to lose work and take holidays, when they otherwise would not.

Compromised the health and safety of residents. Has appropriated the rights

of landowners and tenants. Forced families to leave for the safety of their

children and pets. In addition to the adverse impact on residents, has

adversely affected schools and businesses. Has caused damage to heritage

10properties. Has depleted the peninsula and streets of trees and parkland. Has

forced the removal and cancellation of many community events usually held in

the foreshore precinct. Has decreased the heritage value of the conservation

area. Has had an unknown amount of New South Wales money spent on

promoting the event. Has had an unknown amount of Newcastle City Council

15money in cash and in kind contributed to facilitating the event and had been

shrouded in secrecy at every stage.

Now I note that these concerns raised by the applicant do not provide

evidence in support of these allegations and I am not accepting them as

evidence of what has or will or has not occurred, but I accept that they are

20factors demonstrating issues of public concern, which are supported in the

statement of Julian Ellis which is before me, and in the newspaper articles

provided by the applicant attached to its submissions, and indeed in the

involvement of the applicant in these proceedings in seeking access, the

applicant being a community and resident action group.

25 The considerations that the tribunal needs to take into account against

.19/02/18 2
 RSB:SND 80/18

disclosure are only relevant if it is established that disclosure could reasonably

be expected to have the effect identified in table 14. At s 15(c) I note that the

fact that disclosure might cause embarrassment of a loss of confidence in the

particular agency or in the government is irrelevant and the fact that the

5disclosure might be misinterpreted is also irrelevant to my determination of the

matter.

Taking into account the objects of the Act and the matters that I have

addressed, in my assessment under s 12, I agree that the public interest

considerations in favour of disclosure are those of the general public interest in

10favour at s 12(1), at s 12(2)(a) the public interest in open discussion of public

affairs and enhancing government accountability, and in subs (2)(c) the

oversight of public expenditure.

In the context of the applicant’s submissions and the evidence before me,

I give those factors under s 12 significant weight. I take into account personal

15factors being that the applicant is a residency action group, providing some

kind of personal aspect to the issues that it raises before the tribunal, however

I do agree with the applicant’s submission that the issues that it has raised for

concern, in relation to the access application providing open discussion of

public affairs and oversight of public expenditure are matters well within the

20public interest.

Turning to the justification by the respondent for withholding the

documents, the respondent has referred to 4(d) of the table at s 14, which is

the prejudice to a person’s legitimate or business interests - sorry, that there is

a public interest consideration against disclosure if disclosure of the

25information could reasonably be expected to prejudice any person’s legitimate

.19/02/18 3
 RSB:SND 80/18

business commercial, professional or financial interests.

Now on the evidence before me I find that whilst the legitimate business,

commercial, professional or financial interests for instance, of the third party

are - they are identified, I do not find any evidence before me that those

5interests are prejudiced by the disclosure of the information, with the

exceptions of some aspects of those documents, which I will get to.

In relation to the council’s legitimate business, commercial, professional,

financial interests, again there is no evidence before me to support a finding

that any of the council’s legitimate business, commercial, professional or

10financial interests would reasonably be expected to be prejudiced. In the

circumstances, with the release of the documents, as I will express shortly.

In relation to the public interest consideration against disclosure at 1(d) of

the table to s 14 being the public interest consideration against disclosure if

disclosure of the information could reasonably be expected to prejudice the

15supply to an agency of confidential information that facilitates the effective

exercise of that agency’s functions, whether in a particular case or generally, I

find that there is little or no confidential information which would facilitate the

effect of the council’s functions in the circumstances, within the material to be

disclosed and I therefore afford that factor little weight.

20 In relation to the claim under s 1(g) of the table at s 14, 1(g) being the

breach of confidence, that there is a public interest consideration against

disclosure if the disclosure of the information could reasonably be expected to

found an action against an agency for breach of confidence or otherwise result

in the disclosure of information provided to an agency in confidence, whether

25in a particular case or generally. Again, I find that there is no evidence before

.19/02/18 4
 RSB:SND 80/18

me to support the respondent relying on this claim on the basis that any of the

documents could reasonably be expected to result in a breach of confidence

claim. Specifically there are clauses within those documents which outline

council’s obligations to the parties in relation to confidentiality, which carve out,

5as they should, the requirements at law to disclose certain matters pursuant to

statute pursuant to - well it does not specifically refer to the GIPA Act, but the

GIPA Act can be included, I think, in the nature of the council’s legal

obligations.

In relation to the consideration at clause 1(c) that it may prejudice the

10working relationship between Destination New South Wales and the council, I

accept that there may be some prejudice to the relations between the

respondent and Destination New South Wales. However, given the objects of

the Act and the requirement to comply with its statutory obligation shared by

both the council and by Destination New South Wales, I afford this

15consideration little weight.

In relation to the effect of exercise of the agency’s functions, relied on at

Part 1(f) of the table to s 24 which is that there is a public interest

consideration against disclosure if disclosure of the information could

reasonably be expected to prejudice the effect of exercise by an agency of the

20agency’s functions.

I accept that tourism is an aspect of the functions engaged in by the

agency, but I accept the applicant’s submissions that it is not the major focus

for the agency’s functions, and nor should it be. In the circumstances, I give

the reliance on that section with respect to the disclosure of the subject

25documents, minimal weight.

.19/02/18 5
 RSB:SND 80/18

In relation to the consideration of 4(a), which is to place the council or

Destination New South Wales at a disadvantage in any market, s 4(a) which

states;

“There is a public interest consideration against disclosure if

5 disclosure of the information could reasonably be expected to
undermine competitive neutrality in connection with any functions of
an agency in respect of which it competes with any person or
otherwise place an agency at a competitive advantage or
disadvantage in any market”.
10
I accept that this is a public interest consideration against disclosure, in the

circumstances provided by the respondent in its evidence and submissions,

however on balance, I afford that consideration little weight in the context of

the minimal evidence before me, which does not substantively demonstrate

15any disadvantage in any market, which could be had as a result of disclosure

of this information.

I have taken into consideration the third party objections and as a whole,

on balance, I consider that the documents should be disclosed to the

applicant, with the exceptions of certain pages in those documents, because

20those pages, which I am accepting, in my view, the public interest

considerations against disclosure with respect to the third parties specific

legitimate business interests and financial concerns, outweigh the public

interest in favour of their disclosure.

So what I am proposing to do is to go into a confidential session with the

25respondent, to identify those pages and then resume the open hearing after

that. Can I hear the parties on any objections to that course?

FRASER: No objection.

MARSHALL: No objection.

SENIOR MEMBER DINNEN: Okay so I will go into a confidential session

.19/02/18 6
 RSB:SND 80/18

then. I will ask the applicant and representatives and party to exit the court

room. That part, if the transcript ever does get released, will only be released

to the respondent or to the tribunal.

FOR CONFIDENTIAL SECTION SEE SEPARATE TRANSCRIPT

5SENIOR MEMBER DINNEN: I have had some discussions with the

respondent to identify the specific material that I was looking for in the

documents which I am proposing to allow access. Of the four documents,

documents 1 and 2, I order be provided to the applicant in full within seven

days. Document 3 and 4, require some redactions, as I have identified to the

10respondents in private session and so I would propose that the respondent

provide those documents in their redacted form, to the applicant, also within

seven days.

Now of the redactions, the redaction in document 4 is clear and the

respondent is aware of what that is. In relation to document 3, how long would

15you need Mr Marshall, to come back to me on that issue?

MARSHALL: Seven days.

SENIOR MEMBER DINNEN: Seven days, okay. So there are some

documents in document 3, which the tribunal requires some additional

information as to whether certain parts are already in the public domain or not

20and so within that seven days, the respondent will identify to the tribunal, those

documents that are not – those parts of documents which are in the public

domain can be released to the applicant. Those documents which are not in

the public domain are to be identified to the tribunal and I will determine from

there whether any further directions are needed or whether a determination

25can be made on those documents in the circumstances.

.19/02/18 7
 RSB:SND 80/18

At that point, once I have received that information Mr Marshall, I will

make some orders in chambers, about whether additional submissions are

required or whether a directions hearing is required by phone to progress the

matter to its conclusion. Okay?

5MARSHALL: Yes. If I could just clarify the documents that are to be released
in full, which is document 1 and 2. They’re to be released within seven days?

SENIOR MEMBER DINNEN: Yes.

10MARSHALL: And document 3 is to be redacted and released within seven

days.

SENIOR MEMBER DINNEN: Yes, with the exception of those redactions

which you are to identify as to which parts are in the public realm already or

15not.

MARSHALL: So document 4, we have the redactions and they’ll be provided

within the seven days.

SENIOR MEMBER DINNEN: Yes.

20
MARSHALL: And document 3 we provide everything except those matters
that were identified as being to be further investigated.

SENIOR MEMBER DINNEN: Yes.

25
FRASER: Just for clarification.

SENIOR MEMBER DINNEN: Yes.

30FRASER: Document 4 is settled then, effectively.

SENIOR MEMBER DINNEN: Yes.

FRASER: So it’s only document 3 that you’ve got to have some further
35discussion about?

SENIOR MEMBER DINNEN: Yes, that is right.

FRASER: Thank you.

40
SENIOR MEMBER DINNEN: Do either of the parties have any questions

before I adjourn?

.19/02/18 8
RSB:SND 80/18

FRASER: No thank you.

SENIOR MEMBER DINNEN: Thank you, I will adjourn. You are excused.

ADJOURNED

.19/02/18 9