41k-- Premier NSW GOVERNMENT & Cabinet

Ref: A4650181 Mr David Blunt Clerk of the Parliaments Legislative Council Parliament House Macquarie Street SYDNEY NSW 2000

Dear Mr Blunt

Order for Papers - Sale of TAFE NSW campuses

I refer to the above resolution of the Legislative Council under Standing Order 52 made on 24 March 2021 (calendar day 4 May 2021) and your correspondence dated 5 May 2021. I am now delivering to you documents referred to in that resolution. The documents have been obtained from: • the Office of the Minister for Skills and Tertiary Education • TAFE NSW the Department of Education. Enclosed at Annexure 1 are certification letters from the: Chief of Staff, Office of the Minister for Skills and Tertiary Education • Managing Director, TAFE NSW Secretary, Department of Education Acting Group Deputy Secretary, Governance and Legal Services, Department of Planning, Industry and Environment on behalf of Property NSW, certifying that, to the best of their knowledge and subject to the matters outlined in their letters, all documents held and covered by the terms of the resolution and that are lawfully required to be provided have been provided, or that no documents lawfully required to be provided are held. I also certify that no documents covered by the terms of the resolution that are lawfully required to be provided are held by the Department of Premier and Cabinet. Enclosed at Annexure 2 are indexes of all the non-privileged documents that have been provided in response to the resolution. In accordance with Item 5(a) of Standing Order 52, those documents for which a claim for privilege has been made have been :5eparately indexed and the case for privilege has been noted. Enclosed at Annexure 3 are indexes of all privileged documents and submissions in support of the case for privilege. I note that submissions in support of a claim of privilege may sometimes reveal information that is privileged. To the extent that they do, such submissions should be considered to be subject to the same confidentiality as the documents over which the privilege claim is made.

52 Martin Place, Sydney NSW 2000 • GPO Box 5341, SYDNEY NSW 2001 Tel: (02) 9228 5555 • www.dpc.nsw.gov.au Should you require any clarification or further assistance, please contact Ms Kate Boyd, General Counsel, on telephone (02) 9228 4393. Yours sincerely

Tim Reardon Secretary 1 June 2021

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3 btJ 'f£ s /7 Ot) fi-'w't u.y. J Pl/vf; ~,tk The Hon. Dr MP I NSW-- Minister for Skills and Tertiary Education GOVERNMENT

Mr Matt Richards Executive Director, Legal Office of General Counsel (OGG) Department of Premier and Cabinet Level 14, 52 Martin Place SYDNEY NSW 2000

Dear Mr Richards,

Standing Order 52 - Order for Papers - Sale of TAFE NSW campuses

I refer to the Resolution from agreed to by the Legislative Council on 24 March 2021 under Standing Order 52 regarding the sale of TAFE NSW campuses.

Please find enclosed all documents covered by the terms of the resolution as follows:

(a) all documents regarding the possible sale of any TAFE NSW campus, including all analysis, briefing notes, business cases, feasibility studies, correspondence, and Ministerial briefing notes, (b) all correspondence to or from a member of parliament regarding the possible sale of a TAFE NSW campus, (c) a list of utilisation rates of all TAFE NSW campuses, (d} a list of utilisation rates of all TAFE NSW Connected Learning Centres, (e) all reports, briefings, memorandum, emails and correspondence relating to the utilisation rates of all TAFE NSW campuses, (f) all reports, briefings, memorandum, , emails and correspondence relating to the utilisation rates of all TAFE NSW Connected Learning Centres, and (g) any legal or other advice regarding the scope or validity of this order of the House created as a result of this order of the House.

I certify to the best of my knowledge that all documents held by the office of the Hon. Dr Geoff Lee MP, Minister for Skills and Tertiary Education, that are covered by the terms of the resolution and are lawfully required to be provided have been provided.

Should you require any further information relating to this resolution, please contact Ms Ellie Stamatelatos, Policy Advisor in the Office of the Hon Dr Geoff Lee MP, on 0418 298 469 or at [email protected].

Yours sincerely,

Mitch ell Potts Chief of Staff Office of the Hon. Dr Geoff Lee MP Minister for Skills and Tertiary Education

GPO Box 5341 Sydney NSW 2001 • P: (02) 8574 5650 • F: (02) 9339 5586 • W: nsw.gov.au/ministerlee NSW ~·GOVERNMENT Education

Mr Mark Hare A/Executive Director, Legal Office of General Counsel Department of Premier and Cabinet Level 14, 52 Martin Place SYDNEY NSW 2000 Ref: DGL21/201

Dear Mr Hare

I write regarding the Legislative Council order for papers under. standing order 52 passed on 4 May 2021 in relation to the Sale of TAFE campuses.

The department's claim for privilege (Annexure A) and indexes of non-privileged and privileged documents produced (Annexure B) are enclosed.

I certify to the best of my knowledge that all documents held by the Department of Education that are covered by the terms of the resolution and are lawfully required to be provided have been provided.

If you require any further information please contact Sarah Hargans, A/General Counsel, Legal Services on 7814 1127.

Yours sincerely

Georgina Harrisson A/SECRETARY DEPARTMENT OF EDUCATION 26 May 2021

NSW Department of Education 105 Phillip Street Parramatta NSW 2150 GPO Box 33 Sydney NSW 2001 1300 679 332 education.nsw.gov.au Planning, Industry & Environment

IRF21/1883

Mr Matt Richards Executive Director, Legal Office of General Counsel Department of Premier and Cabinet Level 14, 52 Martin Place SYDNEY NSW 2000

Dear Mr Richards

I refer to correspondence from the Department of Premier and Cabinet dated 6 May 2021 concerning an order for papers under Standing Order 52, which was passed by the Legislative Council on 24 March 2021 regarding Sale of TAFE NSW campuses.

Property NSW (an agency within the Planning, Industry and Environment cluster) have interpreted the scope of part (a) of the Order to exclude actual sales and interagency transfers and therefore hold no documents for possible sales.

The Department also does not hold any documents that are relevant to the other parts to the Order.

I certify to the best of my knowledge that no documents covered by the terms of the resolution and lawfully required to be provided are held by the Department of Planning, Industry and Environment.

If you have any questions or would like further information, please contact Marty Jones, Manager Standing Orders on 02 8229 2911.

Simonne Daly Acting Group Deputy Secretary, Governance and Legal Services Department of Planning, Industry and Environment 17 May 2021

4 Parramatta Square, 12 Darcy Street, Parramatta NSW 2150 J Locked Bag 5022 Parramatta NSW 21241 planning.nsw.gov.au PO BOX 707 BROADWAY NSW 2007 AUSTRALIA •

Matt Richards Your ref: DOC21/45642 Executive Director, Legal Office of General Counsel (OGC) Department of Premier and Cabinet Level 14, 52 Martin Place SYDNEY NSW 2000

Dear Mr Richards

Standing·Order 52 - Order for Papers - Sale ofTAFE NSW Campuses

I refer to the Department's email of 4 May 2021 seeking documents in response to an Order of the Legislative Council made on 24 March 2021.

Attached are documents provided in response to the Order. TAFE NSW has made all reasonable efforts to locate and review all related documents to meet the timeframe required by the Order.

I certify, to the best of my knowledge, all key documents held by TAFE NSW and covered by the terms of the resolution have been provided. However should any additional information relevant to the Order be identified, TAFE NSW will provide these to the Department of Premier and Cabinet.

As requested, an estimate of the time taken by TAFE NSW and outlays incurred in responding to the Order has been made. The estimate is 180 hours. There were no outlays.

If further assistance in relation to this matter is needed, please contact the TAFE NSW General Counsel.

Managing Director TAFE NSW 25 May 2021

TAFENSW EDU AU Office of the Minister for Skills and Tertiary Education 2

ORDER FOR PAPERS - SALE OF TAFE NSW CAMPUSES

NON-PRIVILEGED DOCUMENTS

Document No. Document Date of Creation Author Privilege Claim Y/N? (a) 1 Briefing Note - Disposal of part 15/09/2020 TAFENSW y T AFE NSW Corowa (a) 2 Email from T AFE NSW 4/11/2020 TAFENSW y regarding Divestment Timeline for Fitzroy/George Street, . Dubbo (a) 3 Letter from Minister Lee to 22/10/2020 Office of the Minister y Mandi Randell, Principal Central West Leadership Academy (a) 4 Briefing Note - Divestment of 11/09/2020 TAFENSW y TAFE NSW site - Dubbo (a) 5 Email from Minister's Officer to 24/03/2021 Office of the Minister N the Office of the Hon Daniel Mookhev MLC (a) 6 Email clarifying divestment 25/02/2021 TAFENSW N annroval orocess (a) 7 Briefing Note - Greater Sydney 6/11/2020 TAFENSW N Commission Economic Commissioner (a) 8 Meadowbank TAFE EOI 11/12/2020 Office of the Minister/TAFE N documents NSW (a) 9 Briefing Note - Engagement in 17/09/2020 TAFE NSW N Liverpool Innovation Precinct (a) 10 Briefing Note - Divestment of 12/11/2020 TAFENSW y 16-20 Hoaben Street, Koaarah (a) 11 Briefing Note - Divestment of 25/09/2020 TAFENSW y 54-68 Elwin Street, Narrandera (a) 12 Briefing Note - Divestment of 11/03/2021 TAFENSW y Seaforth, 550 Sydney Road NSW2092 (a) 13 Proposed Divestments FY 2021 15/12/2021 TAFE NSW/Office of the y and 2022 Minister (a) 14 Advice - NSW Teachers 9/03/2021 Office of the Minister N Federation at T AFE NSW Bega Campus (a) 15 Letter from T AFE NSW to NSW 19/03/2021 TAFENSW N Teachers Federation (a) 16 Letter from NSW Teachers 12/02/2021 NSW Teachers Federation N Federation to Minister Lee (a) 17 Briefing Note - Divestment of 15/04/2021 TAFE NSW N TAFE NSW campuses since 1995 (a) 18 Email from T AFE NSW to 4/04/2021 TAFENSW N Minister's Office regarding Quirindi and Singleton TAFE campuses (a) 19 Briefing Note - Divestment 4/09/2020 TAFE NSW y Program FY 2020-2021 and FY 2021-2022 (a) 20 Briefing Note - Divestment of 24/09/2020 TAFENSW y TAFE NSW - Quirindi (a) 21 Email advice regarding TAFE 18/02/2021 Office of the Minister y NSW Quirindi (a) 22 Briefing Note - Proposed 13/03/2020 TAFENSW y 2020/21 Divestment Proaram (a) 23 Budget Estimates Post-Hearing 4/03/2021 Budget Estimates secretariat N documents (a) 24 Email from TAFE NSW to 8/02/2021 TAFENSW N Minister's Office regarding Budaet clarification (a) 25 Briefing Note - Divestment of 45 10/09/2020 TAFENSW y East Street, Grenfell (a) 26 Briefing Note - Third Quarter 12/05/2020 TAFENSW y 2019/20 Investment & Divestment Pro rams U date (a) 27 Briefing Note - Second Quarter 7/02/2020 TAFENSW y 2019/20 Investment & Divestment Pro rams Update (a) 28 Briefing Note - Divestment of 24/09/2020 TAFE NSW y TAFE NSW-Da to (a) 29 Briefing Note - Partial 23/09/2020 TAFE NSW y .Divestment of TAFE NSW Denili uin (a) 30 Briefing Note - Divestment of 09/11/2020 TAFENSW y TAFE NSW-Chullora (a) 31 Email from TAFE NSW to 21/10/2020 TAFE NSW y Minister's Office regarding Divestment of 43 East Street, Grenfell (a) 32 Email advice from TAFE NSW 20/11/2020 TAFENSW y regarding Corowa and Byron Ba TAFE NSW sites

(b) 1 Email from Gwendy Arnot, 19/08/2020 TAFENSW y TAFE NSW to MP (b) 2 Letter from Dugald Saunders 20/10/2020 Dugald Saunders·MP N MP to Minister Lee {b) 3 TAFE NSW Brief regarding 23/02/2021 TAFE NSW N Letter from Dugald Saunders MP to Minister Lee (b) 4 Letter from Minister Lee to 10/03/2021 Office of the Minister N Du aid Saunders (b) 5 Letter from MP to 16/07/2020 Justin Clancy MP N Minister Lee (b) 6 TAFE NSW Brief regarding 6/08/2020 TAFENSW N Letter from Justin Clancy MP to Minister Lee (b) 7 Letter from Minister Lee to 6/08/2020 Office of the Minister N Justin Clancy MP (b) 8 Email from Ministerial Office to 24/11/2020 Office of the Minister N Justin Clancy MP (b) 9 Letter from Paul Fletcher MP to 24/10/2020 Paul Fletcher MP y Mark Scott, Secretary, Department of Education (b) 10 Letter from Minister Lee to Paul 7/12/2020 Office of the Minister y Fletcher MP (b) 11 Letter from MP to 9/07/19 Steph Cooke MP N Minister Lee (b) 12 TAFE NSW Brief regarding 10/09/2019 TAFENSW y Letter from Steph Cooke MP to Minister Lee (b) 13 Letter from Minister Lee to 13/09/2019 Office of the Minister N Steoh Cooke MP (b) 14 Letter from Steph Cooke MP to 7/04/2020 Steph Cooke MP y Minister Lee (b) 15 TAFE NSW Brief regarding 24/04/2020 TAFENSW y Letter from Steph Cooke to Minister Lee (b) 16 Letter from Minister Lee to 24/04/2020 Office of the Minister y Steph Cooke MP (b) 17 Email from TAFE NSW to 6/05/2020 TAFENSW y constituents of Steoh Cooke MP (b) 18 Letter from Yasmin Calley MP 21/01/2021 Yasmin Calley MP N and MP to Minister Lee (b) 19 TAFE NSW Brief regarding 8/03/2021 TAFENSW N Letter from Yasmin Calley MP TAFE NSW

ORDER FOR PAPERS - SALE OF TAFE NSW CAMPUSES

NON-PRIVILEGED DOCUMENTS

Justin Clancy MP - Disposal of art TAFE NSW Corowa 2. (a) MIN20/964 24/09/2020 TAFENSW Redacted Divestment ofTAFE NSW- Quirindi 3. (a) MIN19/590 13/09/2020 TAFENSW Redacted Steph Cooke MP - Divestment of 45 East Street Grenfell 4. (a) MIN19/590 30/10/2020 TAFENSW Redacted Steph Cooke MP - Divestment of 45 East Street Grenfell 5. (a) MIN20/962 24/09/2020 TAFENSW Redacted Divestment of TAFE NSW - Dato 6. (a) MIN20/965 11/03/2021 TAFENSW Redacted Divestment of Seaforth, 550 S dne Road NSW 2092 . ' MIN20/958 06/10/2020 TAFENSW Redacted Divestment ofTAFE NSW site - Dubbo 8. (a) MIN20/961 14/09/2020 TAFENSW Redacted Divestment of TAFE NSW - Goulburn 9. (a) MIN19/022 27/08/2019 TAFENSW Redacted Approve divestment part former TAFE NSW Da to 10. (a) MIN20/1048 25/09/2020 TAFENSW Redacted Divestment of 54-68 Elwin Street Narrandera 11. (a) MIN20/1047 23/09/2020 TAFENSW Redacted Partial divestment of TAFE NSW Denili uin 12. (a) MIN21/412 18/05/2021 TAFENSW Redacted Instrument of Delegation for part of TAFE NSW Castle Hill 13. (a) 2 Green Road CASTLE HILL 12/06 2020 Chadwick forTAFE NSW Redacted Valuation Re ort 14. (a) 2 Green Road CASTLE HILL 09/10/2020 Valuer General NSW Redacted Valuation Determination Letter 15. (a) 2 Green Road CASTLE HILL 16/03/2021 TAFENSW Redacted Communication Plan 16. (a) 8 George Street DUBBO 30/07/2020 Aspect Property Consultants Redacted forTAFE NSW Valuation Re ort "' " ·1e".'"":i!ii~,,,,,s

NON-PRIVILEGED DOCUMENTS FINAL Document/ Privilege Claim TAB No Description Document Date of Creation Author Y/N {a) all documents regarding the possible sale of any TAFE NSW campus, including all analysis, briefing notes, business cases, feasibility studies, correspondence, and Ministerial Category A briefing notes (a)l FW DOC21i71S14 Operational Brief Singleton HS- 18032021.pdf 18/03/2021 Department of Education N (a)2 FW Singleton TAFE- proposed subdivision - asset m 12012021.pdf 12/01/2021 Department of Education N (a)3 FW TAFE NSW Singleton & HS buildings and master p 26022020.pdf 26/02/2020 Department of Education N (a)4 Information on TAFE NSW site at 8 George Street, D 12022021.pdf 12/02/2021 Department of Education N (a)S Ooerational Brief Singleton HS-TAFE acauisition.PDF 25/02/2021 Department of Education N (a)6 RE GPX Case 31228 - 2 Flemington Drive, Scone (TA 2102020,pdf 2/10/2020 Department of Education N (a)7 RE Information on TAFE NSW site at 8 George Stree 15032021.pdf 15/03/2021 Department of Education N (a)B RE Tafe complex sites Due Dllignece 8042021,pdf 8/04/2021 Department of Education N (a)9 RE Tafe Singleton 28042021.pdf 28/04/2021 Department of Education N (a)lO RE utility mapping for DOE assets 23022021.pdf 23/02/2021 Department of Education N (a)ll RE utility mapping for DOE assets 9032021.pdf 9/03/2021 Department of Education N (a)l2 Singleton HS Offer from Tafe for additional land 2S022021.pdf 25/02/2021 Department of Education N (a)l3 Singleton TAFE- desired boundary line 6102020.pdf 6/10/2020 Department of Education N Category B (bl all correspondence to or from a member of parliament regarding the possible sale of a TAFE NSW campus (b)14 Minister to approve final acquisition of Epping TAFE site.PDF 21/06/20191Department of Education I N 3

SUBMISSION IN SUPPORT OF CLAIM FOR CONFIDENTIALITY AND PRIVILEGE BY THE OFFICE OF THE MINISTER FOR SKILLS AND TERTIARY EDUCATION ORDER FOR PAPERS - SALE OF TAFE NSW CAMPUSES - 24 MARCH 2021

This submission has been prepared in support of the claims for privilege made, pursuant to Standing Order 52(5), by the Office of the Minister for Skills and Tertiary Education over documents responsive to the Order of the Legislative Council of 24 March 2021.

It is not in the public interest to publish the documents over which privilege claims are made for the reasons outlined below.

Parliamentary privilege

Documents (a) 1-3 are House Folder Notes, prepared to assist the Minister in answering questions that may be asked in Parliament.

Parliamentary privilege would apply to prevent documents of this kind from being produced to a court, or to another "place out of Parliament" within the meaning of Article 9 of the Bill of Rights 1 1689 (Imp) •

It is not suggested that parliamentary privilege would apply to prevent these documents from being produced to, or from being published by, the Legislative Council in the exercise of its constitutional functions.

It is significant, however, that it has been accepted that requiring disclosure of such documents may affect the quality of information available to Parliament. Justice Austin of the Supreme Court has stated that: 2

"It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament."

The House may therefore wish to consider what impact any publication by it of such documents could have. The House may also wish to consider what effect publication may have on the ability, in future legal proceedings, to claim parliamentary privilege on the basis identified in the extract above.

Commercial-in-confidence

In relation to documents (a) 4, (a) 5, (a) 7 -23, (b) 4, (b) 8, (b) 11 and (b) 12, a claim of public interest privilege is made on the basis that the information is commercial-in-confidence.

1See, for example, Sportsbet Pty Ltd v Ho mess Rocing Victorio (No 4) [20111 FCA 196 at [20]-[22]; and In the matter of Opel Networks Pty Ltd (in liq} 12010) NSWSC 142; (2010) 77 NSWLR 128. 'Opel Networks /2010/ NSWSC 142 at 1118]; (2010) 77 NSWLR 128 at 134. The information in these documents includes pricing information and internal financial information which was provided by a commercial party to TAFE NSW and by extension the Office of the Minister on a confidential basis. The circumstances of the confidential provision of that information are so not to prejudice the commercial interests of the entities that are the subjects of those documents. The nature of the documents includes significant internal financial information of corporate entities. It also includes information which may undermine the position of corporate entities in the market. The likely prejudice caused by disclosure is considered to outweigh the public interest in disclosure of the documents.

Personal information

In relation to documents (a) 6 and (b) 1-12, a claim of privilege is made on the basis of the information being personal information.

The personal information is not publicly available and was received in circumstances where there was no expectation of publication, i.e., between a private citizen and their elected representative. The publication of such information is not in the public interest because the candour of communications with elected representatives would be impeded if personal information revealed in those communications was published without notice or consultation in circumstances where that publication was not anticipated. Disclosure would discourage members of the public from making representations to Government.

On this basis, the Office of the Minister for Skills and Tertiary Education has redacted personal information from copies of these documents which have been identified as non-privileged. Redacted personal information takes the form of names, positions and contact details. Office of the Minister for ·skills and Tertiary Education

ORDER FOR PAPERS - SALE OF TAFE NSW CAMPUSES

PRIVILEGED DOCUMENTS

Document Document Date of Creation Author Privilege Claim No. Y/N? incl. nature of claim (optional) (a) 1 House Folder Note - Surplus 27/01/2021 TAFENSW Y - Parliamentary Land Divestments Privileoe (a) 2 House Folder Note - Surplus 27/01/2021 Office of the Minister Y - Parliamentary Land Divestments Privileoe (a) 3 House Folder Note - 23/04/2019 TAFENSW Y - Parliamentary Divestments Privileoe (a) 4 Briefing Note - Disposal of part 15/09/2020 TAFENSW Y - Commercial-in- TAFE NSW Corowa confidence (a) 5 Email from TAFE NSW 4/11/2020 TAFENSW Y - Commercial-in- regarding Divestment Timeline confidence for Fitzroy/George Street. Dubbo (a) 6 Letter from Minister Lee to . 22/10/2020 Office of the Minister Y - Personal Information Mandi Randell, Principal Central West Leadership Academy (a) 7 Briefing Note - Divestment of 11/09/2020 TAFE NSW Y - Commercial-in- TAFE NSW site - Dubbo confidence (a) 8 Briefing Note - Divestment of 12/11/2020 TAFENSW Y - Commercial-in- 16-20 Hooben Street, Kooarah confidence (a) 9 Briefing Note - Divestment of 25/09/2020 TAFENSW Y - Commercial-in- 54-68 Elwin Street, Narrandera confidence (a) 10 Briefing Note - Divestment of 11/03/2021 TAFE NSW Y - Commercial-in- Seaforth, 550 Sydney Road confidence NSW2092 (a) 11 Proposed Divestments FY 2021 15/12/2021 TAFE NSW/Office of the Y - Commercial-in- and 2022 Minister confidence (a) 12 Briefing Note - Divestment 4/09/2020 TAFE NSW Y - Commercial-in- Program FY 2020-2021 and FY confidence 2021-2022 (a) 13 Briefing Note - Divestment of 24/09/2020 TAFE NSW Y - Commercial-in- TAFE NSW - Quirindi confidence (a) 14 Email advice regarding TAFE 18/02/2021 Office of the Minister Y - Commercial-in- NSW Quirindi confidence (a) 15 Briefing Note - Proposed 13/03/2020 TAFENSW Y - Commercial-in- 2020/21 Divestment Pro ram confidence (a) 16 Briefing Note - Divestment of 45 10/09/2020 TAFENSW Y - Commercial-in- East Street, Grenfell confidence (a) 17 Briefing Note - Third Quarter 12/05/2020 TAFE NSW Y - Commercial-in- 2019/20 Investment & confidence Divestment Pro rams U date (a) 18 Briefing Note - Second Quarter 7/02/2020 TAFENSW Y - Commercial-in- 2019/20 Investment & confidence

(a) 19 Briefing Note - Divestment of 24/09/2020 TAFENSW Y - Commercial-in- TAFE NSW- Da to confidence (a) 20 Briefing Note - Partial 23/09/2020 TAFENSW Y - Commercial-in- Divestment of T AFE NSW confidence Denili uin (a) 21 Briefing Note - Divestment of 09/11/2020 TAFENSW Y - Commercial-in- T AFE NSW - Chullora confidence (a) 22 Email from TAFE NSW to 21/10/2020 TAFENSW Y - Commercial-in- Minister's Office regarding confidence Divestment of 43 East Street, Grenfell (a) 23 Email advice from TAFE NSW 20/11/2020 TAFENSW Y - Commercial-in- regarding Corowa and Byron confidence Ba TAFE NSW sites (b) 1 Letter from Paul Fletcher MP to 24/10/2020 Paul Fletcher MP Y - Personal Information Mark Scott, Secretary, Deoartment of Education (b) 2 Letter from Minister Lee to Paul 7/12/2020 Office of the Minister Y - Personal Information Fletcher MP {b) 3 Letter from Steph Cooke MP to 7/04/2020 Steph Cooke MP Y - Personal Information Minister Lee (b) 4 T AFE NSW Brief regarding 24/04/2020 TAFE NSW Y - Personal Information Letter from Steph Cooke to & Commercial-in- Minister Lee confidence (b) 5 Letter from Minister Lee to 24/04/2020 Office of the Minister Y - Personal Information Steph Cooke MP (b) 6 Email from TAFE NSW to 6/05/2020 TAFENSW Y - Personal Information constituents of Steph Cooke MP (b) 7 Email from Swansea Electorate 4/12/2020 Swansea Electorate Office Y - Personal Information Office to Minister Lee {b) 8 TAFE NSW Brief regarding 1/03/2021 TAFE NSW Y - Personal lnfonnation Email from Swansea Electorate & Commercial-in- Office to Minister Lee confidence (b) 9 Letter from Minister Lee to 10/03/2021 Offie of the Minister Y - Personal Information Yasmin Catlev MP {b) 10 Email from Upper Hunter 16/03/2021 Upper Hunter Electorate Y - Personal lnfonnation Electorate Office to Minister's Office Office {b) 11 Email from Gwendy Arnot. 19/08/2020 TAFENSW Y - Commercial-in- TAFE NSW to Dugald Saunders confidence MP (b) 12 T AFE NSW Brief regarding 10/09/2019 TAFENSW Y - Commercial-in- Letter from Steph Cooke MP to confidence Minister Lee i,tk NSW-- GOVERNMENT Education

SUBMISSION IN SUPPORT OF CLAIM FOR CONFIDENTIALITY AND PRIVILEGE BY THE DEPARTMENT OF EDUCATION ORDER FOR PAPERS - SALE OF TAFE CAMPUSES 4 MAY 2021

In accordance with the terms of the resolution agreed to by the Legislative Council on 4 May 2021, and the terms of Standing Order 52, documents have been identified for production by the Department of Education and the potential application of privilege to those documents has been considered. This submission has been prepared in support of the claims for privilege made by the NSW Department of Education.

It is to be noted that these claims for privilege are not raised as a basis to resist production of documents that are within scope of the resolution. Rather, these claims are made, pursuant to Standing Order 52(5), to identify those documents over which privilege may be claimed, in order to allow the Legislative Council to consider the claims and in support of an application that it is in the public interest that the documents should not be made publicly available.

Commercial in confidence

It is submitted that the documents identified and indexed as privileged contain information in relation to the commercial interests of third parties and the State, and that the public interest in their non-disclosure outweighs the interest in their disclosure.

The nature of the documents includes information about the service needs for the Singleton area and confidential information about current and future purchasing plans and initiatives of the NSW Government. Documents marked privileged in the index should be considered privileged as their disclosure would prejudice the commercial interests of third parties and the State.

The likely prejudice caused by disclosure is considered to outweigh the public interest in disclosure of the documents.

Yours sincerely

Sarah Hargans A/General Counsel Legal Services

NSW Department of Education - Legal Services Level 5, 105 Phillip Street, Parramatta NSW 2150 GPO Box 33 Sydney NSW 2001 T 7814 3896 E [email protected] Department of Education ' Order for Papers-Sale of Tafe Campus ;

PRIVILEGED DOCUMENTS

FINAL Document/ TAB No Description Document Date of Creation Author Privilege Claim Y/N (a) all documents regarding the possible sale of any TAFE NSW campus, including all analysis, briefing notes, business cases, feasibility studies, correspondence, and Category A Ministerial briefing notes (a}lS DOC21163757 Service Planning"'ce-Singleton HS February2021.PDF 1/02/2021 Department of Education Y-CIC (a}16 FW Tafe Singleton 26042021.pdf 26/04/2021 Department of Education Y-CIC (a}l7 Service Planning Support Briefing Memo - Singleton 26022021.pdf 26/02/2021 Department of Education Y-CIC PRIVILEGE SUBMISSIONS FOR RETURN TO ORDER: SALE OF TAFE NSW CAMPUSES

This submission has been prepared in support of the claims for privilege made, pursuant to Standing Order 52(5), by TAFE NSW over documents responsive to the Order of the Legislative Council of 24 March 2021.

It is not in the public interest to publish the documents over which privilege claims are made for the reasons outlined below.

In relation to documents l(a) -19(a), a claim of public interest privilege is made on the basis that the information is commercial-in-confidence.

The information in these documents includes: (1) Ministerial Briefings prepared by TAFE NSW and market valuations provided by: a. Herron Todd White b. Walsh & Monaghan c. Aspect Property Consultants (including rental appraisal values and sale value appraisals) (2) Market valuation provided by Chadwick and compensation determination provided by the Valuer General in relation to the sale of a portion of Castle Hill.

Re (1) The information contained in market valuations for property that is possibly for sale is sensitive because disclosure would reveal commercially valuable information, being the estimated value of property and rental returns. This revelation may have the effect of decreasing leverage for TAFE NSW to obtain the best price that the market can provide at the time of sale. This information is referenced in Ministerial Briefings prepared by TAFE NSW.

It is not in the public interest to decrease the market leverage ofTAFE NSW through disclosure of property valuations because it diminishes the likelihood of obtaining best value on sale.

Re (2) It is not apparent that there is any public interest in disclosure of the amount of the Valuer General's compensation determination, nor in the commercially sensitive aspects of the Chadwick valuation.

In relation to documents 20(a)- 25(a), a claim of public interest privilege is made on the basis that the information would be subject to parliamentary privilege if raised before a Court. It is not suggested that parliamentary privilege would apply to prevent these documents from being produced to the Legislative Council under Standing Order 52.

However, it is relevant to the question of publication (which is what privilege claims under Standing Order 52 are concerned with) that parliamentary privilege can be pleaded between courts and Parliament, because that privilege is based on recognition that the disclosure of such documents may affect the quality of information available to Parliament. Justice Austin of the Supreme Court has stated that: 1

10pel Networks {2010) NSWSC 142 at (118]; (2010) 77 NSWLR 128 at 134. "It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament."

Documents 20(a)-25(a), are house folder notes, prepared to assist the Minister for Skills and Tertiary Education in answering questions that may be asked in Parliament. Parliamentary privilege would apply to prevent documents of this kind from being produced to a court, or to another "place 2 out of P;,rliament" within the meaning of Article 9 of the Bill of Rights 1689 (Imp) •

The possible impact of publication on the quality of information available to Parliament, as identified by Austin J, and the possible impact of such publication on the ability to claim parliamentary privilege in future legal proceedings, are relevant and important public interests against disclosure of these documents.

In relation to documents 26(b)-27(b), a claim of privilege is made on the basis of the information being personal information.

The personal information (names, addresses and email addresses) is not publicly available and was received in circumstances where there was no expectation of publication (direct personal communication between a private citizen and their elected representative). The publication of such information is not in the public interest because the candour of communications with elected representatives would be impeded if personal information revealed in those communications was published without notice or consultation in circumstances where that publication was not anticipated. Disclosure would discourage members of the public from making representations to government. On this basis, TAFE NSW has redacted personal information from documents 26(b)- 27(b),

Personal information in the form of signatures has been redacted in the interests of reducing the opportunity for identity theft.

2See, for example, Sportsbet Pty Ltd v Harness Racing Victoria {No 4) [2011] FCA 196 at [20]-[22]; and In the matter of Opel Networks Pty Ltd (in liq) [2010] NSWSC 142; (2010) 77 NSWLR 128. TAFE NSW

ORDER FOR PAPERS-SALE OF TAFE NSW CAMPUSES

PRIVILEGED DOCUMENTS

Document Document Date of Creation Author Privilege Privilege No. Claim type Y/N? y 1. (a) MIN20/931 15/09/2020 TAFE NSW Commercial in Confidence Justin Clancy MP - Disposal of • art TAFE NSW Corowa y 2. (a) MIN20/964 24/09/2020 TAFE NSW Commercial in Confidence Divestment of TAFE NSW - Quirindi y 3. (a) MIN19/590 13/09/2020 TAFENSW Commercial in Confidence Steph Cooke MP - Divestment of 45 East Street Grenfell y 4. (a) MIN19/590 30/10/2020 TAFENSW Commercial in Confidence Steph Cooke MP - Divestment of 45 East Street Grenfell y 5. (a) MIN20/962 24/09/2020 TAFENSW Commercial in Confidence Divestment of TAFE NSW - Dapto y 6. (a) MIN20/965 11/03/2021 TAFENSW Commercial in Confidence Divestment of Seaforth, 550 Sydney Road NSW 2092 Document Document Date of Creation Author Privilege Privilege No. Claim type Y/N? 7. (a) MIN20/958 06/10/2020 TAFENSW y Commercial in Confidence Divestment of TAFE NSW site - Dubbo 8. (a) MIN20/961 14/09/2020 TAFENSW y Commercial in Confidence Divestment of TAFE NSW - Goulburn 9. (a) MIN19/022 27/08/2019 TAFENSW y Commercial in Confidence Approve divestment part former TAFE NSW Dapto y 10. (a) MIN20/1048 25/09/2020 TAFENSW Commercial in Confidence Divestment of 54-68 Elwin Street, Narrandera y 11. (a) MIN2011047 23/09/2020 TAFENSW Commercial in Confidence Partial divestment ofTAFE NSW Deniliquin y 12. (a) MIN21/412 18/05/2021 TAFENSW Commercial in Confidence Instrument of Delegation for part of TAFE NSW Castle Hill y 13. (a) 2 Green Road CASTLE HILL 12/06 2020 Chadwick for TAFE NSW Commercial in Confidence Valuation Report y 14. (a) 2 Green Road CASTLE HILL 09/1012020 Valuer General NSW Commercial in Confidence Valuation Determination Letter y 15. (a) 2 Green Road CASTLE HILL 16/03/2021 TAFE NSW Commercial in Confidence Communication Plan Document Document Date of Creation Author Privilege Privilege No. Claim type Y/N? 16. (a) 8 George Street DUBBO 30/07/2020 Aspect Property Consultants y Commercial forTAFE NSW in Confidence Valuation Report 17. (a) 2 Murray Street COROWA 25/09/2020 Walsh & Monaghan for TAFE y Commercial NSW in Confidence Valuation Report 18. (a) 83-87 York Street SINGLETON 26/03/2020 Herron Todd White for TAFE y Commercial NSW in Confidence Valuation Report y 19. (a) 45 East Street GRENFELL 28/10/2019 Herron Todd White for TAFE Commercial NSW in Confidence Valuation Report 20. (a) HFN - TAFE NSW - 08/10/2019 TAFENSW y Parliamentary Divestments I 20 Year Infrastructure Straten" 21: (a) HFN - TAFE NSW - 09/07/2020 TAFENSW y Parliamentary Divestments I 20 Year Infrastructure Stratenv 22. (a) HFN - TAFE NSW- Old . 09/07/2020 TAFENSW y Parliamentary Grenfell TAFE Site 23. (a) HFN - TAFE NSW- 02/09/2020 TAFENSW y Parliamentary Divestments I 20 Year Infrastructure Stratenv 24. (a) HFN - TAFE NSW- Old 02/09/2020 TAFENSW y Parliamentary Grenfell TAFE Site 25. (a) HFN - Divestments of Surplus 16/11/2020 TAFENSW y Parliamentary TAFE NSW Sites y 26. (b) Email Re Dubbo from Public 04/06/2020 Office of Minister for Personal Mitchell office attaching email Education and Early from member of the public Childhood Learning 27. (b) Correspondence Re Dubbo to 22/10/2020 The Hon. Dr Geoff Lee MP y Personal member of the oublic