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International Law

: Open and Shut

Sydney Olympic deals still commercially significant

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Ah remember the days..revisited recently in a Government Information (Public Access) Act case in the NSW Administrative Decisions Tribunal concerning the relatively rare issue of access to cabinet information ten or more years old. The decision involved something not quite as rare, a win (mostly) for the Sydney Swans (8-3, midway through the season).

The conclusive presumption that there is an overriding public interest against disclosure of cabinet information ( GIPA Schedule 1 Clause 2) does not apply if (a) public disclosure of the document has been approved by the Premier or Cabinet, or (b) 10 years have passed since the end of the calendar year in which the document came into existence.

Nevertheless, depending on content, context and the effect of disclosure, there is scope on other grounds to claim an overriding public interest against disclosure.

Deputy President Higgins in Hall v Department of Premier and Cabinet [2012] NSWADT 46 decided some withheld parts of a 1999 cabinet minute prepared in the lead up to the 2000 Olympics should be released, affirmed the decision (with a confidentiality order attached to the reasons) to refuse access to other parts that had continuing commercial significance to the Swans and the Stadium Australia Management Limited (SAG), and referred other disputed parts of the document back to Premier's for reconsideration. (The document as released is yet to appear on the department's disclosure log.)

Few points of law arose in the case. The order that some information withheld by the department should be disclosed resulted primarily from the failure to satisfy the tribunal that disclosure would have the adverse effects claimed. For information of this kind it was unnecessary to consider whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations for disclosure. However with regard to some, Deputy President Higgins commented "there are a number of public interest considerations in favour of disclosure of the information in the disputed paragraphs. The stadium is an important public asset and disclosure of the disputed information (now 13 years old) could reasonably be expected to enhance Government accountability and ensure effective oversight of the expenditure of public funds" [52]. Other information of this kind "appears to be purely factual and uncontroversial" [72]

The document in dispute was Cabinet Committee Minute SC 99-3: entitled 'Stadium Australia - AFL Reconfiguration', dated 19 January 1999, and attachments. The main purpose of the minute was "to obtain approval to amend the agreement between the then Olympic Co-ordination Authority (OCA ) and Stadium Australia to allow the Olympic Stadium (now ANZ Stadium) to be reconfigured to allow a broader range of activities to be held, including the playing of AFL football" and for OCA to contribute $6m plus a loan of up to $3m for this purpose. The Premier's department had initially refused access to the document as a whole, then released parts on internal review, identifying 'business interests of agencies and other persons' as the relevant public interest consideration against disclosure- those conditional grounds prescribed in 4(c) (disclosure of the information could reasonably be expected to diminish the competitive commercial value of the information) and 4(d) (disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial or financial interests) in the Table to section 14 of the GIPA Act [64].

At 30 June 2010, the $3 million loan, later extended to a $12 million loan to SAG from the OCA and its successor, Sydney Olympic Park Authority, had a balance of approximately $27.6 million [32-33]

Deputy President Higgins decided [63,64, 68, 73] there was an overriding public interest against disclosure of some information-about 'event hiring' and the 'rental fee' under which the AFL and Sydney Swans agreed to hire the stadium, and the terms of the OCA loan to SAG.

Full post as published by Open and Shut on June 19, 2012 (boomark / email).