Premier & Cabinet

.r,11 ~~ Premier NSW GOVERNMENT & Cabinet

Reference: A4614741 Mr David Blunt Clerk of the Parliaments Legislative Council Parliament House Macquarie Street SYDNEY NSW 2000

Order for Papers - Monaro Farming Systems - Supplementary Return

Dear Mr Blunt

I refer to the above resolution of the Legislative Council under Standing Order 52 made on 17 March 2021 and the letter from the Secretary of the Department of Premier and Cabinet to you dated 7 April 2021 in relation to that resolution.

In his letter, the Secretary noted that responses from the Office of the Deputy Premier, the Office of the Minister for Agriculture and Western New South Wales and Regional NSW were being finalised and that it was anticipated that they would be returned as soon as possible.

I am now delivering to you documents in response to the resolution obtained from those offices and Regional NSW.

Enclosed at Annexure 1 are certification letters from the:

• Chief of Staff, Office of the Deputy Premier, Minister for Regional New South Wales, Industry and Trade; • Chief of Staff, Office of the Minister for Agriculture and Western New South Wales; and • Secretary, Regional NSW,

certifying that, to the best of their knowledge, all documents held and covered by the terms of the resolution and that are lawfully required to be provided have been provided.

I note that the letter from the Secretary of Regional NSW states that, due to the extended time frame (1 O years' worth of information) covered by the resolution, it has not been possible to provide a complete response to date, and that remaining documents will be provided as soon as possible.

In accordance with item 5(a) of Standing Order 52, the documents for which a claim for privilege has been made have been separately indexed and the case for privilege has been noted. Enclosed at Annexure 2 is an index 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 • GPO Box 5341 Sydney NSW 2001 • P: (02) 9228 5555 • F: (02) 9228 3935 • dpc.nsw.gov.au Should you require any clarification or further assistance, please contact Sarah Johnson, A/Executive Director, Legal, on telephone (02) 9228 3133.

Yours sincerely

Mark Hare A/General Counsel

9/04/2021 The Hon. John Barilaro MP ~,tk Deputy Premier I NSW Minister for Regional New South Wales GOVERNMENT Minister for Industry and Trade

6 April 2021

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

Order for papers - Monaro Farming Systems

Dear Mr Richards,

I write in response to the memorandum received from Kate Boyd, General Counsel on 19 March 2021 relating to Standing Order 52 - Order for Papers - Monaro Farming Systems.

I certify to the best of my knowledge all documents held by the Office of the Deputy Premier, Minister for Regional New South Wales, Industry and Trade that are covered by the terms of the resolution and are lawfully required to be provided have been provided.

Yours sincerely s~~~ Siobhan Hamblin Chief of Staff Office of John Barilaro MP Deputy Premier Minister for Regional NSW Minister for Trade and Industry

GPO Box 5341 Sydney NSW 2007 • P: (02) 8574 5150 • F: (02) 9339 5530 • W: nsw.gov.au/deputypremier ~,1k The Hon. Adam Marshall MP NSW Minister for Agriculture GOVERNMENT Minister for Western New South Wales

Mr Matt Richards A/Executive Director, Legal Branch Department of Premier and Cabinet Level 14, 52 Martin Place SYDNEY NSW 2000

Dear Mr Richards

I write with regard to the order for papers under Standing Order 52 relating to Monaro Farming Systems.

I certify to the best of my knowledge that all documents held by the office of The Hon. Adam Marshall MP that are covered by the terms of the resolution and are lawfully required lo be provided have been provided.

If you require any additional information, please do not hesitate to contact me on 0447 949 718.

Yours sincerely

Jackson Busse Chief of Staff Office of the Hon. Adam Marshall MP

GPO Box 5341 Sydney NSW 2001 • P: (02) 8574 5450 • F: (02) 9339 5574 • W: nsw.gov.au/ministcrmarshall .t,1k Regional NSW GOVERNMENT NSW

A4597670/BN21/1674 Mr Mark Hare A/Executive Director, Legal Office of General Counsel Department of Premier and Cabinet Level 14, 52 Martin Place SYDNEY NSW 2000

07 April 2021

Dear Mr Hare

Standing Order 52 Resolution - Order for Papers - Monaro Farming Systems

I refer to the letter of 18 March 2021 from Ms Kate Boyd regarding the above resolution passed by the Legislative Council on Thursday, 17 March 2021.

Due to the extended time frame (10 years' worth of information) captured by the scope of the Order and the need for Information and Technology assistance to recover relevant documents, it has not been possible to provide a complete response within the time frame (21 days) stipulated by the Order.

Consequently, a partial response has been prepared in response to the Order and being delivered by the due date. The remaining documents, which covers mainly emails falling within clause (i) of the Order, will be provided as soon as possible.

The Department will continue, as a priority, to prepare a further response containing the remaining documents that have been captured by this Order.

I certify to the best of my knowledge that documents currently being provided are those held by the Department of Regional New South Wales that are covered by the terms of the resolution and are lawfully required to be provided. As noted above, further documents will be provided as soon as possible.

If you have any queries about this matter, please do not hesitate to contact me or have your officers contact Mr Tim Holden, General Counsel on 0411 275 264.

Yours sincerely,

Gary Barnes Secretary

Encl: Index of non-privileged documents Index of Privileged documents Claim for privilege Copy of documents returned

11 Farrer Place, Queanbeyan NSW 2620 I www.regional.nsw.gov.au Office of the NSW Deputy Premier ORDER FOR PAPERS - SO52 - Monaro Farming Systems NON-PRIVILEGED DOCUMENTS

Privilege Claim Document No. Document Date of Creation Author Y/N? (f) 1 email: letter re: funding for MFS 30/11/2020 Office of the Minister for Agriculture N (f) 2 email - re: lines 16/02/2021 Office of the Minister for Agriculture N Letter to the Hon. Katrina Hodgkinson (f) 3 18/11/2013 The Hon. John Barilaro MP N MP Office of the Minister for Mental (f) 4 email - media inquiry 2/03/2021 N Health, Regional Youth and Women

(f) 5 email - media inquiry 2/03/2021 Office of the Deputy Premier N

(f) 6 Letter from Monaro Farming Systems 10/12/2012 Office of the Hon Katrina Hodgkinson N

(f) 7 email - Monaro Farming Systems 17/08/2020 Office of the Deputy Premier N

(f) 8 Email - Questions from the Guardian 25/02/2021 Department of Regional NSW N

Monaro visit - Monaro Farming (f) 9 12/08/2020 Office of the Member for Monaro N systems and local farmers

Letter from the Hon Dr Mike Kelly AM (g) 10 28/08/2019 The Hon Dr Mike Kelly AM MP N MP

(i) 11 email - draft response 25/02/2021 Office of the Deputy Premier N

(i) 12 email - preliminary response 2/03/2021 Office of the Deputy Premier N OFFICE OF THE MINISTER FOR AGRICULTURE & WESTERN NSW

ORDER FOR PAPERS - MONARO FARMING SYSTEMS

NON-PRIVILEGED DOCUMENTS

Document No. Document Date of Creation Author Privilege Claim Y/N? 1 Letter from Hon Dr Mike Kelly 03/09/2019 Hon Dr Mike Kelly MP N MP 2 Letter from John Barilaro MP 06/09/2019 John Barilaro MP N 3 Letter from Minister Marshall to 30/10/2019 Minister Marshall N Hon Dr Mike Kellv MP 4 Email exchange between 29/11/2019 Caroline Lumley & Jackson N Caroline Lumley and Jackson Busse Busse 5 Email exchange between Amy 02/12/2019 Amy Minahan & Minister N Minahan and Minister Marshall Marshall 6 Letter from John Barilaro MP 31/03/2020 John Barilaro MP N 7 Email exchange between Amy 31/03/2020 Amy Minahan & Katherine N Minahan and Katherine Oberq Oberq 8 Letter from Minister Marshall to 01/05/2020 Minister Marshall N John Barilaro MP 9 Letter from John Barilaro MP 05/05/2020 John Barilaro MP N 10 Email from Jackson Busse to 11/07/2020 Jackson Busse N Scott Hansen 11 Email from Jackson Busse 11/07/2020 Jackson Busse N 12 Text message from Sarah 10/08/2020 Sarah Bannerman N Bannerman (Monaro EO) to Connor McGoverne (Marshall MO) 13 Text message from Sarah 31/08/2020 Sarah Bannerman N Bannerman (Monaro EO) to Connor McGoverne (Marshall MO) 14 Email from Siobhan Hamblin to 17/08/2020 Siobhan Hamblin N Jackson Busse 15 Email from David Witherdin to 02/09/2020 David Witherdin N Jackson Busse 16 Letter from John Murdoch 29/09/2020 John Murdoch N (Monaro Farming Systems) to office of Minister Marshall 17 Email from Amy Minahan to 29/09/2020 Amy Minahan N Linda Black 18 Email from Linda Black to Amy 02/11/2020 Linda Black N Minahan reaardina missed call 19 Email from Linda Black to Amy 19/11/2020 Linda Black N Minahan reaardina missed call 20 Email from Linda Black to Amy 24/11/2020 Linda Black N Minahan rei:iardini:i missed call 21 Brief in relation to Monaro 15/10/2020 Local Land Services N Farming Systems funding reauest 22 Letter from Minister Marshall to 30/11/2020 Minister Marshall N Monaro FarminQ Systems 23 Email from Sarah Bird to Amy 30/11/2020 Sarah Bird N Minahan 24 Email from Amy Minahan to 30/11/2020 Amy Minahan N James Jooste 25 Email from James Jooste to 02/12/2020 James Jooste N Amv Minahan 26 Email from Caroline Lumley to 11/02/2021 Caroline Lumley N Connor McGoverne 27 Email from Caroline Lumley to 15/02/2021 Caroline Lumley N Luke O'Donnell and Connor McGoverne 28 Email from Luke O'Donnell to 15/02/2021 Luke O'Donnell N Jackson Busse, Amy Minahan, Alex Hall and Connor McGoverne 29 Email from Luke O'Donell to 15/02/2021 Luke O'Donnell N Jennifer Luasdin 30 Email from Luke O'Donnell to 16/02/2021 Luke O'Donnell N Caroline Lumlev 31 Email from Carolin Lumley to 17/02/2021 Luke O'Donnell N Luke O'Donnell 32 Email from Luke O'Donnell to 17/02/2021 Luke O'Donnell N Alex Hall 33 Email from Caroline Lumley to 25/02/2021 Caroline Lumley N Luke O'Donnell 34 Georgina Kentwell to Luke 25/02/2021 Georgina Kentwell N O'Donnell 35 Email from Carolin Lumley to 25/02/2021 Caroline Lumley N Luke O'Donnell 36 Email from Luke O'Donnell to 25/02/2021 Luke O'Donnell N Jackson Busse and Alex Hall 37 Email from Caroline Lumley to 25/02/2021 Caroline Lumley N Matthew Sun and Luke O'Donnell 38 Email from Luke O'Donnell to 25/02/2021 Luke O'Donnell N Briaid Glanvile 39 Email from Alex Hall to Luke 25/02/2021 Alex Hall N O'Donnell 40 Email from Georgina Williams to 25/02/2021 Georgina Williams N Connor McGoverne 41 Email from Connor McGoverne 25/02/2021 Georgina Williams N to Georaina Williams 42 Email from Caroline Lumley to 25/02/2021 Caroline Lumley N Luke O'Donnell 43 Email from Caroline Lumley to 26/02/2021 Caroline Lumley N Luke O'Donnell and Connor McGoverne 44 Email from Daniel Newlan to 02/03/2021 Daniel Newlan N Luke O'Donnell 45 Email from Luke O'Donnell to 02/03/2021 Luke O'Donnell N Jackson Busse, Amy Minahan, Connor McGoverne and Alex Hall 46 Email from Caroline Lumley to 02/03/2021 Caroline Lumley N Luke O'Donnell and Connor McGoverne .47 Email from Caroline Lumley to 02/03/2021 Caroline Lumley N Matthew Sun, Holly Hearne, Harriet Whyte and Connor McGoverne 48 Email from Connor McGoverne 02/03/2021 Connor McGoverne N to Luke O'Donnell 49 Email from Luke O'Donnell to 02/03/2021 Connor McGoverne N Jackson Busse, Amy Minahan, Alex Hall and Connor McGoverne 50 Letter from Budget Estimates 08/03/2021 NSW Parliament N Secretariat 51 Email from Connor McGoverne 09/03/2021 Connor McGoverne N to Jackson Busse, Amy Minahan and Jodie Bain 52 Email from Sarah Bird to Amy 09/03/2021 Sarah Bird N Minahan, Alex Hall, Jodie Bain and Connor McGoverne 53 Email from Sam Tedeschi to 16/03/2021 Sam Tedeschi N Connor McGoverne 54 Email from Connor McGoverne 17/03/2021 Connor McGoverne N to Jamie Jones 55 Email from Connor McGoverne 17/03/2021 Connor McGoverne N to Sam Tedeschi 56 Email from Connor McGoverne 17/03/2021 Connor McGoverne N to Alex Hall 57 Email from Sarah Bird to 17/03/2021 Sarah Bird N Connor McGoverne Department of Regional NSW ORDER FOR PAPERS - SO52 - Monaro Farming Systems NON-PRIVILEGED DOCUMENTS

Document Document Date of Creation Author Privile Number ge Claim Y/N? /a) Nil b) 001 Services aqreement - siqned 20 Januarv 2021 Deot of Reqional NSW N b) 002 Email containinq siqned service aqreement 22 March 2021 Dept of Reqional NSW N b) 003 Short Form Services Ameement - unsiqned 20 January 2021 Dept of Reqional NSW N C 001 Partner declaration 22 March 2019 Dept of Regional NSW N C 002 Performinq Services Ameement 17 June 2018 Deot of Reaional NSW N d Nil N e Nil N /f\ 001 CM 9 notification - Letter from DP 2 December 2013 Dept of Reqional NSW N If\ 002 Brief and Letter to Deputy Premier 1 Mav 2020 Dept of Regional NSW N 003 Text to MO 19 November 2020 Deot of Reaional NSW N 004 Text to MO 11 November 2020 Dept of Reqional NSW N l Nil N h Nil N 001 Email 1 March 2021 Deot of Reaional NSW N 002 Email 3 March 2021 Deot of Reaional NSW N 003 Advice request 26 February 2021 Dept of Reqional NSW N 004 Advice request 1 March 2021 Dept of Reqional NSW N (i 005 Email 1 March 2021 Dept of Regional NSW N (i 006 Contract annroval brief 23 November 2020 Deot of Reaional NSW N (i 007 Partners aareement September 2020 Dept of Reqional NSW N (i 008 Contract annroval brief 18 June 2018 Dept of Reqional NSW N (i 009 Costinq report 2018/19 FY Dept of Reqional NSW N (i 010 Head grant aareement Auaust 2019 Deot of Reaional NSW N (i) 011 Email 2 February 2021 Dept of Rer:iional NSW N /i) 012 Advice reauest 26 February 2021 Dept of Regional NSW N /il 013 CM9 Record notes 27 January 2021 Dept of Regional NSW N /il 014 Email 23 March 2021 Dept of Rer:iional NSW N /il 015 Email 13 July 2020 Dept of Rer:iional NSW N /il 016 Project expenditures undated Dept of Rer:iional NSW N (i) 017 Email 20 January 2021 Dept of Rer:iional NSW N (i) 018 Project expenditures undated Dept of Regional NSW N /il 019 Email 26 Februarv 2021 Dept of Regional NSW N Office of the NSW Deputy Premier ORDER FOR_PAPERS-SOS2- Monaro Farming Systems PRIVILEGED DOCUMENTS

Privileae Claim Claim for Privilege Document No. Document Date of Creation Author Y/N? (f) 1 email: letter re: funding for MFS 30/11/2020 Office of the Minister for Agriculture y personal information Letter to the Hon. Katrina Hodgkinson (f) 3 18/11/2013 The Hon. John Barilaro MP y personal information MP (f) 6 Letter from Monaro Farming Systems 10/12/2012 Office of the Hon Katrina Hodgkinson y personal information Letter from the Hon Dr Mike Kelly AM personal information, (g) 10 28/08/2019 The Hon Dr Mike Kelly AM MP y MP commercial in confidence 3 SUBMISSION IN SUPPORT OF CLAIM FOR CONFIDENTIALITY AND PRIVILEGE BY THE OFFICE OF THE DEPUTY PREMIER ORDER FOR PAPERS - Monaro Farming Systems

In accordance with the terms of the resolution agreed to by the Legislative Council on 17 March 2021, and the terms of Standing Order 52, documents have been identified for production by the Office of the Deputy Premier, and Minister for Regional New South Wales, Industry and Trade, 'the Office', 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 this Office.

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.

Personal information

It is submitted that certain documents identified and indexed as privileged, contain personal information and the public interest in the non-disclosure of that information outweighs the interest in its disclosure.

In support of this claim,-such information would ordinarily be protected from public disclosure under common law or pursuant to the Government Information {Public Access) Act 2009 (the GIPA Act) or the Privacy and Personal Information Protection Act 1998.

The Hon. Mr Keith Mason AO QC, 'the arbiter', has noted that the House has undoubted power to take additional measures to prevent disclosure of confidential information where that is not in the public interest. 1

On several occasions, the arbiter has also endorsed the agreement of members, who had initially disputed a claim of privilege, that certain personal "private" information be redacted, avoiding the need for the arbiter to resolve such disputes. 2 The arbiter has noted, amongst other matters, that members will always have access to un-redacted versions of the documents and the capacity to access such information if it is really needed. 3

With regard to the above considerations, the Office has redacted personal information and from certain documents that may cause the identity of an individual to be ascertained. This includes names and contact information (including addresses, email addresses and phone numbers) and other identifying information.

The Office considers that it would be prejudicial to the public interest and to the system of representative and responsible government in NSW for such personal information to be made public. The Office submits that making identifying information publicly available, especially given the particular nature of the subject matter, may lead to harassment of individuals who have corresponded with a Member of Parliament. It would be reasonable to assume that the candour of such communications may be impeded if individuals were aware that, with no notice and without consultation, their personal information in connection with that correspondence was released. Commercial in confidence

It is submitted Document (g) 10 identified and indexed as privileged contains information in relation to the commercial interests of third parties, and that the public interest in their .non-disclosure outweighs the interest in their disclosure.

In support of this claim, it is submitted that such information would ordinarily be protected from public disclosure under the common law or the GIPA Act.

1 0 0 Mason, K, Report under Standing Order 52 on disputed claim of privilegej Sydney Stadiums ( Sydney Stadiums Report ), 22 May 2018; at pp. 2, 4. 4 Sydney Stadiums Report at p.10; Mason, K., Report under Standing Order 52 on disputed claims of privilege, Greyhound Welfare, 14 February 2017 ("Greyhounds Report"), at p. 10. It is, of course, necessary that each instance should be examined on its merits, and it is not suggested the circumstances in those matters are equivalent to the current matter. 5 Sydney Stadiums Report at p. 1 OFFICE OF THE MINISTER FOR AGRICULTURE & WESTERN NSW

ORDER FOR PAPERS - MONARO FARMING SYSTEMS

PRIVILEGED DOCUMENTS

Document No. Document Date of Creation Author Privilege Claim Y/N? 1 Letter from Hon Dr Mike Kelly 03/09/2019 Hon Dr Mike Kelly MP y MP 2 Letter from John Barilaro MP 06/09/2019 John Barilaro MP y 3 Letter from Minister Marshall to 30/10/2019 Minister Marshall y Hon Dr Mike Kellv MP 4 Email exchange between 29/11/2019 Caroline Lumley & Jackson y Caroline Lumley and Jackson Busse Busse 5 Email exchange between Amy 02/12/2019 Amy Minahan & Minister y Minahan and Minister Marshall Marshall 7 Email exchange between Amy 31/03/2020 Amy Minahan & Katherine y Minahan and Katherine Obera Obera 8 Letter from Minister Marshall to 01/05/2020 Minister Marshall y John Barilaro MP 12 Text message from Sarah 10/08/2020 Sarah Bannerman y Bannerman (Monaro EO) to Connor McGoverne (Marshall MO) 13 Text message from Sarah 31/08/2020 Sarah Bannerman y Bannerman (Monaro EO) to Connor McGoverne (Marshall MO) 15 Email from David Witherdin to 02/09/2020 David Witherdin y Jackson Busse 16 Letter from John Murdoch 29/09/2020 John Murdoch y (Monaro Farming Systems) to office of Minister Marshall 17 Email from Amy Minahan to 29/09/2020 Amy Minahan y Linda Black 21 Brief in relation to Monaro 15/10/2020 Local Land Services y Farming Systems funding reauest 22 Letter from Minister Marshall to 30/11/2020 Minister Marshall y Monaro Farmina Systems 23 Email from Sarah Bird to Amy 30/11/2020 Sarah Bird y Minahan 24 Email from Amy Minahan to 30/11/2020 Amy Minahan y James Jooste 25 Email from James Jooste to 02/12/2020 James Jooste y Amy Minahan 26 Email from Caroline Lumley to 11/02/2021 Caroline Lumley y Connor McGoverne 27 Email from Caroline Lumley to 15/02/2021 Caroline Lumley y Luke O'Donnell and Connor McGoverne 28 Email from Luke O'Donnell to 15/02/2021 Luke O'Donnell y Jackson Busse, Amy Minahan, Alex Hall and Connor McGoverne 29 Email from Luke O'Donell to 15/02/2021 Luke O'Donnell y Jennifer Luasdin 33 Email from Caroline Lumley to 25/02/2021 Caroline Lumley y Luke O'Donnell 34 Georgina Kentwell to Luke 25/02/2021 Georgina Kentwell y O'Donnell 41 Email from Connor McGoverne 25/02/2021 Georgina Williams y to Georaina Williams 42 Email from Caroline Lumley to 25/02/2021 Caroline Lumley y Luke O'Donnell 46 Email from Caroline Lumley to 02/03/2021 Caroline Lumley y Luke O'Donnell and Connor McGoverne 47 Email from Caroline Lumley to 02/03/2021 Caroline Lumley y Matthew Sun, Holly Hearne, Harriet Whyte and Connor McGoverne 48 Email from Connor McGoverne 02/03/2021 Connor McGoverne y to Luke O'Donnell 49 Email from Luke O'Donnell to 02/03/2021 Connor McGoverne y Jackson Busse, Amy Minahan, Alex Hall and Connor McGoverne SUBMISSION IN SUPPORT OF CLAIM FOR CONFIDENTIALITY AND PRIVILEGE BY THE OFFICE OF THE MINISTER FOR AGRICULTURE & WESTERN NSW ORDER FOR PAPERS - MONARO FARMING SYSTEMS

In accordance with the terms of the resolution agreed to by the Legislative Council on 17 March 2021, and the terms of Standing Order 52, documents have been identified for production by the office of the Minister for Agriculture and Western NSW 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 Office.

Personal information

It is submitted that documents 1, 2, 3, 4, 5, 7, 8, 12, 13, 15 16, 17, 21, 22, 23, 24, 25, 26, 27, 28, 29, 33, 34, 41, 42, 46, 47, 48 and 49 are identified and indexed as privileged as they contain personal information and that the public interest in the non-disclosur_e of that information outweighs the interest in its disclosure.

In support of this claim, it is submitted that such information would ordinarily be protected from public disclosure under common law or pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act) or the Privacy and Personal Information Protection Act 1998.

The Hon. Mr Keith Mason AO QC has noted that the House has undoubted power to take additional measures to prevent disclosure of confidential information where that is not in the public interest. 1 The arbiter has also, on several occasions, endorsed the agreement of members, who had initially disputed a claim of privilege, that certain personal "private" information be redacted, avoiding the need for the arbiter to resolve such disputes. 2 The arbiter has noted, amongst other matters, that members will always have access to un-redacted versions of the documents and the capacity to access such information if it is really needed 3

With regard to the above considerations, the Office has redacted from certain documents personal information which might cause the identity of an individual to be ascertainable. This includes names and contact information (including addresses, email addresses and phone numbers) and other identifying information.

1 Mason, K, Report under Standing Order 52 on disputed claim of privilege; Sydney Stadiums ("Sydney Stadiums Report"), 22 May 2018; at pp. 2, 4. 4 Sydney Stadiums Report at p.10; Mason, K., Report under Standing Order 52 on disputed claims of privilege, Greyhound Welfare, 14 February 2017 ("Greyhounds Report"), at p. 10. It is, of course, necessary that each instance should be examined on its merits, and it is not suggested the circumstances in those matters are equivalent to the current matter. 5 Sydney Stadiums Report at p. 1 Commercial in confidence

It is submitted that documents 1 and 3 are also identified and indexed as privileged as they contain information in relation to the commercial interests of third parties and that the public interest in their non-disclosure outweighs the interest in their disclosure.

In support of this claim, it is submitted that such information would ordinarily be protected from public disclosure under the common law or the GIPA Act.

The nature of the documents includes 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. Department of Regional NSW

ORDER FOR PAPERS - SO52 - Monaro Farming Systems

PRIVILEGED DOCUMENTS

Document Document Date of Creation Author Privile No. ge Claim Y/N? /a Nil bl 001 Services aareement - sianed 20 Januarv 2021 Dent of Reaional NSW y bl 002 Email containina sianed service aareement 22 March 2021 Dent of Reaional NSW y C Nil d Nil e Nil (t' 001 CM 9 notification - Letter from DP 2 December 2013 Dent of Reaional NSW y /q) Nil (h) Nil i 001 Email 1 March 2021 Dent of Reaional NSW y (i) 002 Email 3 March 2021 Dept of Regional NSW y 003 Advice reauest 26 Februarv 2021 Dent of Reaional NSW y 004 Advice rea uest 1 March 2021 Dept of Reaional NSW y 005 Email 1 March 2021 Dent of Re• ional NSW y 006 Contract annroval brief 23 November 2020 Dent of Reaional NSW y 007 Partners aareement Sentember 2020 Dent of Reaional NSW y 008 Contract annroval brief 18 June 2018 Dent of Reaional NSW y 009 Costina report 2018/19 FY Dept of Reaional NSW y 010 Head arant aareement Auriust 2019 Dent of Reaional NSW y 011 Email 2 Februarv 2021 Dent of Reaional NSW y i 012 Advice reauest 26 Februarv 2021 Dent of Reaional NSW y (i) 013 I CM9 Record notes I 27 January 2021 I Dept of Regional NSW y SUBMISSION IN SUPPORT OF CLAIM FOR CONFIDENTIALITY AND PRIVILEGE BY THE DEPARTMENT OF REGIONAL NSW ORDER FOR PAPERS - MONARO FARMING SYSTEMS

In accordance with the terms of the resolution agreed to by the Legislative Council on Wednesday 17 March 2021, and the terms of the Standing Order 52, documents have been identified for production by the Department of Regional NSW (DRNSW) 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 DRNSW.

Legal professional privilege

It is submitted that some of the documents identified and indexed as privileged should not be made public on one or more of the available grounds of the common law principle of legal professional privilege or client legal privilege under the Evidence Act 1995.

The documents contain requests for legal advice, legal advice provided by the Legal Services Branch and lawyers within the Research Programs Office and confidential communications between a legal adviser and their client for the purpose of providing legal advice.

In particular, it is submitted that the above documents are privileged because: 1. they were brought into existence for the purpose of: a. enabling the client to obtain, or its legal advisers to give, legal advice; or b. for use in actual litigation or litigation reasonably contemplated by the client and in respect of which privilege has not been waived; and/or

2. they are confidential communications between the client or its legal advisers and persons with whom the client shares or shared a common interest in relation to the subject matter of the advice received by one of them.

In Trade Practices Commission v Sterling (1979) 36 FLR 244, 245-6 the categories of circumstances in which legal professional privilege can arise were set out by Lockhart J. These categories of legal professional privilege may be described as:

(a) Communication between client and legal adviser, which is confidential, is made to or by a legal advisor in a professional capacity and is made with a view to obtaining or giving legal advice.

(b) Document prepared with view to being used as in (a) but not in fact so used.

(c) Communication between various legal advisers of the client. (d) Notes, memoranda, minutes or other documents made by the client or legal adviser of or recording privileged communications or relating to information sought by the legal adviser in order to advise or conduct litigation.

(e) Communications between legal adviser and third party if made or prepared when litigation is anticipated or commenced, for the purposes of litigation, with a view to obtaining advice, evidence, or information which may result in the obtaining of evidence.

(f) Communications between client and third party with reference to litigation either anticipated or commenced, at the request or suggestion of the legal adviser or for the purpose of being put before the legal adviser to obtain advice or to enable prosecution or defence of action.

(g) Knowledge, information or belief of client derived from privileged communications from the legal adviser.

Based on the provided advice and the Department's own assessment of the information, it appears that the information falls within the above categories, specifically (a), (c), (d) and (g).

It is relevant to note that legal professional privilege is a ground upon which there is a conclusive presumption of an overriding public interest against disclosure in the Government Information (Public Access) Act 2009 (GIPA Act) (see secti_on 14(1) and clause 5 of Schedule 1 to the GIPA Act). It has also been noted in numerous reports of the arbiter that legal professional privilege should be respected as a strong claim for privilege.

It is submitted that legal professional privilege in these documents should be upheld because the protection of legally privileged Crown documents is in the public interest.

Commercial in confidence

It is submitted that some of 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 documents contain information that if publicly known would place the relevant parties at a competitive disadvantage and reveal commercial-in-confidence provisions of government contracts, financial arrangements, cost structures and intellectual property in which a contractor has an interest.

In support of this claim, it is submitted that such information would ordinarily be protected from public disclosure under the common law or the GIPA Act.

Private sector entities that contract with us to provide services on behalf of government operate in a competith(e environment and invest significant resources to ensure the viability of their enterprise. They contract with an expectation that the agency will not release information that could reasonably be expected to jeopardise their viability or enable its competitors to undercut them in any contract renewals at the end of the current period of their engagement. Public release of some information could reasonably be expected to prejudice a contractor's business interests by revealing commercially sensitive information. The NSW Civil and Administrative Tribunal (NCAT) said that information has commercial value to an entity when some uniqueness attaches to it "that justifies it as exclusive, secret or confidential." 1

NCAT has also said that in order to prove the requirement that the information be created in a competitive environment agencies need to show that release would provide a person with a "competitive edge" in processes such as competitive purchases or competitive provision of government seivices. 2

Also, that the environment of confidentiality of a tender process and the making of the contract with the successful bidder does not need specific evidence. Confidentiality can be inferred from the confidentiality of the tender process. 3

Finally, that how the agency evaluates a proposal (methodology) that shows perceived strengths and weaknesses of a proposal is competitive commercial information for both the tenderers and the agency. 4

Documents indexed as Commercial in Confidence should be considered privileged as their disclosure would prejudice the commercial interests of the entities that are the subjects of those document. The likely prejudice caused by disclosure is considered to outweigh the public interest in disclosure of the documents.

Personal information /Privacy

It is submitted that some of the documents identified and indexed as privileged contain personal information and that the public interest in the non-disclosure of that information outweighs the interest in its disclosure.

Certain documents contain private email addresses and personal signatures.

The Hon. Mr Keith Mason AO QC has noted that the House has undoubted power to take additional measures to prevent disclosure of confidential information where that is not in the public interest. The arbiter has also, on several occasions, endorsed the agreement of members, who had initially disputed a claim of privilege, that certain personal "private" information be redacted, avoiding the need for the arbiter to resolve such disputes. The arbiter has noted, amongst other matters, that members will always have access to un-redacted versions of the documents and the capacity to access such information if it is really needed

The Department considers that it would be prejudicial to the public interest and to the system of representative and responsible government in NSW for interactions between individuals and their elected representatives to be made public, in circumstances where the communication may

1 Hall v Department of Premier and Cabinet [2012] NSWADT 46, [56) 2 Eyes v Wyong Shire Council (2016] NSAWCATAD 120, [71]; Nature Conservation Council of NSWv Department of Trade and Investment Regional Infrastructure and Services [2012] NSWADT 195, 160]; McKinnon v Blacktown City Council [2012) NSWADT 44, [72), [79); Manning v Bathurst Regional Counci/[2018) NSWCATAD 132, [22) 3 Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 253, [68); Merfton Property Services Pty Lid v UrbanGrowth NSW[2017] NSWCATAD 71, [107) 4 Merfton Property Services Pty Lldv UrbanGrowth NSW[2017] NSWCATAD 71, [85) originally have been made without any expectation that it would be published. This is particularly so, as the information is not already known or available to the public, and we have no idea of the implications that could occur from disclosing such personal information.