Nature Conservation Council of NSW v Department of Trade & Investment, Regional Infrastructure & Services and Anor (Administrative Decisions Tribunal proceedings)

September 2012

The NCC sought access to a range of documents from Forest NSW under the Government Information (Public Access) Act 2009 (NSW). The documents sought included the contracts between Forests NSW and sawmill companies for the supply of timber. The Department of Trade and Investment, Regional Infrastructure and Services agreed to release the contracts, but with relevant information removed, including the resource allocation and/or description, the resource price and terms of the agreements.

The reasons given for refusing access to this information related to the commercial nature of the information. The NCC has appealed to the Administrative Decisions Tribunal against this decision. The Tribunal will decide whether the public interest considerations in favour of release outweigh the factors against release. EDO NSW is acting for the NCC in the Tribunal.

The hearing was held 6 & 7 March 2012, and decision was handed down on Thursday 20 September 2012.

The NSW Administrative Decisions Tribunal, consisting of Judicial Member Mr Stephen Montgomery, determined that the public interest in favour of releasing the details of the contracts outweighed any commercial interests in keeping them secret.

While the Tribunal accepted that there might be some risk of the commercial interests of the sawmills being affected, it observed that “there is considerable doubt in regard to the extent of those risks”. In contrast, the Tribunal accepted that there were strong public interest considerations in favour of release including:

• a clear public interest in an agency that is dealing with public assets being accountable for the manner in which it contracts to sell those assets;
• to further public policy development around the management of the publicly owned hardwood forest estate in NSW; and
• to encourage community engagement with Government about sustainability

The Tribunal has therefore ordered release of the contracts within 30 days.

EDO NSW acted for the NCC in this matter. The decision recognises the community’s right to access detailed information about the NSW Government’s management of State forests and plantations. This decision builds on the Tribunal’s earlier decision in Watt v Forests NSW in providing public access to information about the financial return on logging of public forests.

Decision ADT