NSW Cabinet

NSW & Cabinet GOVERNMENT

- 9 DEC 2010

Ms Lynn Lovelock Clerk of the Parliaments Legislative Council Parliament House SYDNEY NSW 2000

Dear Ms Lovelock

Request for Papers - Revised HEZ Desktop Biobank Assessment

I refer to the Resolution of the Legislative Council under Standing Order 52 made on 2 December 2010 concerning the Revised HEZ Desktop Biobank Assessment.

I am now delivering to you the documents referred to in that Resolution.

The documents have been obtained from the Office of the Minister for Planning and the Department of Planning.

Enclosed at Annexure A are certification letters from the Office of the Minister for Planning and the Department of Planning indicating that, to the best of their knowledge, all documents held and covered by the terms of the Resolution have been provided.

Enclosed at Annexure B are indexes of all non-privileged documents that have been provided in response to the Resolution.

Should you require any clarification or further assistance please do not hesitate to contact Ms Rachel McCallum, Acting Executive Director, Legal Branch on (02) 9228 5543.

Yours sincerely

guAJd 3-SW Brendan O'Reilly Director General

Governor Macquarie Tower, 1 Farrer Place, Sydney NSW 2000 W GPO Box 5341, Sydney NSW 2001 Tel: (02) 9228 5555 a F: (02) 9228 5249 n www.dpc.nsw.gov.au

NSW I Planning GOVERNMENT

Office of the Director General

Ms Rachel McCallum A/Executive Director, Legal Branch Department of Premier and Cabinet Level 37, Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000

Dear Ms McCallum

I refer to the resolution of the Legislative Council of Wednesday, 1 December 2010, ordering the production of documents in relation to Revised HEZ Desktop Biobank Assessment.

I certify that to the best of my knowledge all documents held by the Department of Planning and covered by the terms of the resolution have been provided for the Legislative Council.

Yours faithfully

9 4 d d d Sam Haddad ---L

Director General

3\ \r\ wto

Bridge St Office 23-33 Bridge St Sydney NSW 2000 GPO Box 39 Sydney NSW 2001 DX 22 Sydney Telephone: (02) 9228 61 11 Facsimile: (02).9228 61 91 Website planning.nsw.gov.au

NSW GOVERNMENT

Hon Tony Kelly MLC

Minister for Planning

Minister for infrastructure

Minister for Lands

Deputy Leader of the Government in the Legislative Council

Leader of the House in the Legislative Council

Ms Rachel McCallum Acting Executive Director Legal Branch Department of Premier and Cabinet Level 37, Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000

Dear Ms McCallum

Standing Order 52 - Order for Papers Thirlmere Lakes

Rest area at Varroville Revised HEZ Desktop Biobank Assessment

I refer to your advice of the Orders by the Legislative Council for the production of all documents held by the Minister for Planning relating to Thirlmere Lakes, Rest area at Varroville

. and Revised HEZ Deskfop Biobank Assessment.

I certify to the best of my knowledge all documents held by the Office of the Minister for Planning and covered by the terms of the resolution are attached.

Yours faithfully

Stephen Fenn Chief of Staff

Level 34, Governor Macquarie Tower Room 809 Parliament House 1 Farrer Place, Sydney NSW 2000 Macquarie Street. Sydney NSW ZOO0 T (02) 9228 3999 F (02) 9228 3988 T (02) 9230 2528 F (02) 9230 2530

DEPARTMENT OF PLANNING

RESPONSE TO ORDER FOR PAPERS - REVISED HEZ DESKTOP BIOBANK ASSESSMENT

VOLUME A: Non- Privileged documents File Relating to request

Document No.

-- -.

1 -

. item

. .

@)

Document

Letter from DPC regarding Call for Papers

Date of Creation

-- 2 December 201 0

Author

DPC

Privilege claim?

YIN N

GOVERNMENT NSW & Cabinet

Mr Sam Haddad Director General Department of Planning GPO Box 39 SYDNEY NSW 2001

URGENT

- 2 DEC 2010

REGEEVED

; 3 DEC 2018 ~ i ~ @ m G ~ n ~ a l

BY FACSIMILE AND POST Facsimile: (02) 9228 6191

Dear Mr Haddad

Standing Order 52 - Order for Papers - Revised Hez Desktop Biobank Assessment

I write to inform you that on Wednesday, 1 December 2010 the Legislative Council agreed to the following Resolution:

That, under standing order 52, there be laid upon the table of the House within 7 days of the date of passing of this resolution the following do,cuments created since I January 2009 in the possession, custody or control of the Minister for Planning or the Depattment of Planning:

(a) fhe Desktop Biobank Assessment of the Revised Hunter Employment Zone (HEZ) Masterplan, authored or submitted by Eco Logical Australia Pty Ltd,

(b) all drafts of the Desktop Biobank Assessment of the Revised HEZ Masterplan, authored or submiffed by Eco Logical Australia Pty Ltd, and

(c) all documents referring to the Desktop Biobank Assessment of the Revised HEZ Masterplan, authored or submitfed by Eco Logical Australia Pty Ltd, and

(d) any document which records or refers to the production of documents as a result of this order of the House.

An extract from the.Minutes of the Proceedings of the Legislative Council, Thursday, 2 December 2010, entry 10, page 2329, is attached.

The resolution requires the documents to be tabled within 7 days.

The following guidelines apply to your response to the Resolution.

Governor Macquarie Tower, 1 Farrer Place, Sydney NSW 2000 n GPO Box 5341, Sydney NSW 2001 Tel: (02) 9228 5555 F: (02) 9228 5249 5 www.dpc.nsw.gov.au

1. Provision of Papers

All papers (other than Cabinet documen'ts) which fall within the terms of the Resolution must be produced. Cabinet documents must not be produced (see section 6 below).

Papers which fall within the terms of the Resolution should be produced in full, even if they contain irrelevant information. That is, material should not be blacked out or otherwise masked when photocopying papers which fall within the terms of the Resolution.

It may, however, be appropriate to mask some material in documents if a claim for privilege is made (see section 3 below).

Please note that only photocopies of original papers and files are to be provided. All papers should be delivered by close of business on Tuesday, 7 December 2010 to:

Ms ~ a c h e l McCallum Acting Executive Director, Legal Branch Department of Premier and Cabinet Level 37, Governor Macquarie Tower 1 Farrer Place SYDNEY NSW 2000

Please contact Mr George Makrides, Senior Project Officer, Legal Branch, on (02) 9228 5546 if you wish to discuss any aspect of this request.

2. Non-privileged papers

Standing Order 52(3) provides that, 'A return under this order is to include an indexed list of all documents tabled, showing the date of creation of the document, a description of the document and the author of the document'.

A document showing the standard format to be used when preparing an index under Standing Order 52 is enclosed at Annexure A. Please adhere to the standard format when preparing an index of documents.

Please note that the index should contain the following information:

Document The document number should follow the format '(a)(i) l', where Number '(a)' refers to the relevant paragraph of the Resolution, '(i)'

refers to the relevant subparagraph of the Resolution, and 'I' refers to the first document in the group of documents that fall within subparagraph (a)(i).

Ifem The description of the relevant item as per the Resolution. For example, 'Documents relating to concept formulation and cost benefit analyses'.

Document A short description of the relevant document. For example, 'Letter from X to Y'.

Date of creation Where the exact date is unknown, insert an estimated date range if possible.

Author The agency or organisation that created the document.

Privilege Claim If the index relates to privileged documents, write 'Yes'. If the index relates to non-privileged documents, write 'No'.

3. Claims of Privilege

A document showing the standard format to be used when making claims for privilege is enclosed at Annexure 6. Please adhere to thestandard format, where appropriate, . . . when making a claim for privilege.

If a privilege claim is subsequently challenged, the question of whether the document is privileged will be referred to a legal arbiter for a ruling.

It is important, therefore, that the basis of the claim is clearly set out in the response to the Resolution so that the arbiter can properly assess the validity of the claim. There will be no opportunity to provide further submissions in support of a claim of privilege if it is challenged.

Please note that a separate index is required for 'non-privileged' and 'privileged' documents as these types of documents are returned separately.

If a document contains only a minor amount of privileged material, it may be appropriate to produce two copies of the document: a full copy of the document as a 'privileged' document, and a copy of the document with the privileged material blacked out or otherwise masked as a 'non-privileged' document.

This approach may be appropriate where, for example, a document contains a relativelv small amount of oersonal information which mav be subiect to a claim for privilege on the grounds o j privacy, but which is not needed for thk document to be understood. For example, letters to the Government on a particular issue could be produced on a 'non-privileged' basis with the names and addresses of the authors blacked out, with full copies provided on a 'privileged' basis.

4. Delivery and Identification

As time is critical, it would be appreciated if all papers could be delivered in file record boxes with the corresponding parts of the index affixed to the top of each box. For example, that part of the index which lists the documents contained in Box 1 should be attached to the top of Box 1.

Please place 'privileged' and 'non-privileged' documents in separate boxes.

The Legislative Council has also requested that agencies return documents in standard archive boxes (Type 1 boxes). Further information about this type of box may be obtained from State Records at http://www.records.nsw.aov.au/arr/docs/ storaqeboxes.doc

5. Certification by CEO

Papers should be accompanied by a letter signed by you stating, "I certify to the best of my knowledge all documents held by the Department of Planning and covered by the terms of the resolution have been provided.

6. Cabinet Documents

Cabinet documents should not be produced or referred to in responding to the Resolution.

All agencies are obliged to protect the confidentiality of Cabinet documents (refer to Premier's Memorandum 2006-08 Maintaining Confidentiality of Cabinet Documents and Other Cabinet Conventions).

7. Agency Contact

Could you please provide the contact details of the officer assigned to coordinate your agency's response to George Makrides as soon as possible.

8. Estimated Cost of Compliance

Consistent with the usual practice, it will be necessary for your agency to provide details of the costs incurred in complying with the resolution under separate cover for the Cabinet Standing Committee on Public Administration.

I seek your assistance in ensuring that your agency's documents are with the Legal Branch of the Department no later than by close of business on Tuesday, 7 December 2010.

General dounse~

ENERGYAUSTRALIA

ORDER FOR PAPERS - REDEVELOPMENT OF WALSH BAY

I Bay Properties, Walsh Bav I EneravAustralia I I 1 I

Document No.

Item 1 (a)(l) Y/N ? --

Any proposal, agreement Letter from Barry Webb & 14 May 1996 Steven Markis, Barry Webb No or tender between Walsh Associates to & Associates

Claim Item

partnership or Walsh ~ a ~ . Finance Pty Ltd and the Government

Letter from Department of Urban Affairs & Planning to EnergyAustralia

cc: G l s h Bay Properties

ltem 1 (a)(2) 8 July 1996

Document

Any proposal, agreement or tender between, Walsh Bay Properties, Walsh Bay Partnership, Walsh Bay Finance Pty Ltd and the Government

Date of Creation

David Hume, Manager, Sydney South, Department of Urban Affairs and Planning.

partnership, Walsh Bay - Finance Pty Ltd and the Governm'ent

No

Item 1 (a)(3)

Author Privilege

Any proposal, agreement or tender between, Walsh Bay Properties, Walsh Bay

Letter from EnergyAustralia to George Fioth Pty Ltd

15 August 1996 Ian Swords for Manager Network Connections - South, EnergyAustralia

No

SUBMISSION IN SUPPORT OF CLAIM FOR CONFIDENTIALITY AND PRIVILEGE BY THE DEPARTMENT OF PUBLIC WORKS & SERVICES AND I

MARINE MINISTERIAL HOLDING CORPORATION WALSH BAY

The Marine Ministerial Holding Corporation ("MMHC) has entered into an agreement, for the redevelopment of a 15 hectare waterfront heritage site at Walsh Bay, with Walsh Bay Properties Pty Limited, Transfield (Walsh Bay) Pty Limited, Miwac (Walsh Bay) Pty Limited and Walsh Bay Finance Pty Limited ("the Walsh Bay parties"). The Department of Public Works & Sewices ("DPWS") has been appointed MMHC's agent in respect of the project.

All documents and material passing to MMHC from the Walsh Bay parties were provided on the basis that they, and all material arising out of those documents, were, and would continue to remain, "commercial in confidence". Further, under the terms of the Project Delivery Agreement dated October 1997 between MMHC and the Walsh Bay parties, the parties have specifically agreed to maintain confidential all information relating to the project.

Clause 27.16 of the Project Delivery Agreement provides:

"(a) Each party agrees and undertakes to keep and maintain confidential all the terms covenants and conditions of this agreement any information supplied by one party to another under this agreement including but not limited to information provided by the Contractor to MMHC under clause 3.2(b) and not to disclose those terms, covenants and conditions or any part of them or any information or part of that information to any person, company or organisation except as provided in this clause.

(b) . Nothing in this clause will prohibit the parties from disclosing any term, covenant or condition of this agreement:

1. Which it believes in good faith is required to be disclosed by law or by the ASX Listing Rules; or 2. Which was already in the lawful possession of the recipient in written form; or 3. Is generally available to the public otherwise than by disclosure in breach of the terms of this clause; or 4. To any consultant or contractor of a party, to any proposed assignee or mortgagee or Financier of a party and

their consultants, or to any person considering investing in the Project or their consultants for the nllrnnses nf or in connection with any matter contemplated by this agreement; or

5. With the prior written consent of the other party.

(c) Nothing in this clause will prohibit MMHC from disclosing any term, covenant or condition of this agreement to the Government of the State of New South Wales or any Minister of the Crown.

(d) Media releases in respect of the Project must be jointly agreed between the parties. Both the Contractor and MMHC must keep each other informed of a name and emergency contact details of their representative who has authority to approve media releases on their behalf. Both parties must ensure their representative is available on 24 hours notice to approve a media release. The Contractor acknowledges that the Minister for Ports has the right to make press releases in respect of the Project and is not bound by the provisions of this clause. MMHC must ensure the Minister is informed of the contents of this clause."

Obligations of confidentiality were also imposed by the terms of the original tender documents. The parties, including MMHC, are therefore bound to keep confidential all documents or information dating from either before or after the date of the Project Delivery Agreement.

Notwithstanding this obligation, the Walsh Bay parties have agreed that MMHC may provide to the Parliament and make available to the public all documents other than those specified in the Return in Support of Claim for Privilege prepared by MMHC and DPWS.

The Walsh Bay parties have indicated that they regard the documents specified in the Returns, whether coming into existence before or after the Project Delivery Agreement, to be of such a commercially sensitive nature that release of the material contained in those documents will have serious adverse commercial implications for the Walsh Bay parties. Those adverse commercial implications include the following consequences:

1. Disclosure to competitors of the methods and costings for the implementation, construction, financing and marketing of the project; and

2. Disclosure to potential purchasers.of the costings for the projects.

It is submitted that the documents should not be made public as the following detriment may arise:

1. Breach of contractual promises of confidentiality. 2. Prejudice current or future contractual or other relationships between Government and the private sector. 3. Discourage future dealings with Government. 4. Cause loss of commercial advantage and competitiveness within the private sector. 5. Cause detriment to private sector participants. 6. Reduce Government's ability to deliver the maximum public benefit.

We attach a letter from the Walsh Bay parties in respect of their concerns.

Claims for legal professional privilege

It is submitted that those documents listed in Department of Public Works Return as DPWS Departmental Files marked "Legal" and those documents which include legal advice in the Waterways Authority.(Maritime Assets Division) Return are privileged and should not be made public on one or more of the available grounds of privilege pursuant to both common law doctrines and the statutory regime, in that:

1. they are, or contain a record of, confidential communications or documents brought into existence for the purpose of: (a) enabling MMHC and DPWS ("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 (legal professional privilege); 2. they are confidential communications or documents 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 (common interest privilege).

Claims for public interest immunity

It is submitted that those documents listed in the Department of Public Works Return and those documents listed in the Waterways Authority (Maritime Assets Division) Return are privileged and should not be made public on the grouilds of privilege pursuant to both common law doctrines and the statutory regime, in that:

1. they are the subject of a claim of public interest immunity because the public interest in their disclosure is outweighed by a competing public interest in their suppression (public interest immunity) as:

it would involve disclosure of communications made in the course of development and promulgation of policy; disclosure would inhibit frankness and candour in future pre-decision communications; disclosure will lead to confusion and unnecessary debate resulting from disclosure of decisional possibilities considered; it would involve disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken, being unfair to a decision-maker and prejudicial to the integrity of the decision-making process; the disclosure would impede the free flow of commercially sensitive information to the Government; and

because of all of the above, the ordinary business of Government, which engages in contractual relationships with commercial parties, will be prejudiced by the disclosure.

Mr Dick Persson Director General Department of Public Works and Services Level 21, McKell Building 2- 24 Rawson Place SYDNEY NSW 2000

Dear Sir

Re: Walsh Bay - Upper House Motion dated 24 November 1999

We refer to the above Motion and to the documents in the possession of Government relating to the redevelopment of Walsh Bay. We request that those documents for which the department intends to make a claim for privilege and/or confidentiality should be kept confidential and not made public.

We believe that public disclosure of those documents would adversely affect the ability of Project to achieve its full potential and reduce our ability to deliver the maximum public benefit.

The making public of the details of commercial arrangements between private enterprise and Government is a dangerous precedent as disclosure of commercially sensitive information will significantly prejudice the future ability of such private enterprise groups to prepare competitive bids and carry out commercial negotiations. Pursuant to that bid process, private participants provide commercially sensitive information to Government and then proceed to treat with Government in reliance upon Government keeping all such information and negotiations confidential. If such information is to be made public, this will discourage the private sector from future dealings with Government which will, of course, be to the ultimate detriment of the New South Wales public.

We believe that we, and the joint venture partners Transfield and Mirvac, will suffer direct and material commercial prejudice in relation to future dealings both with respect to the Walsh Bay Project and to commercial transactions and dealing with other parties should this information come within the public domain.

In particular, disclosure of those materials which contain commercially sensitive information will directly and materially commercially prejudice us by revealing information about project development, delivery methods, transaction structures, "know how", operations and maintenance methods and engineering and construction methods, and, in the context of the Walsh Bay Redevelopment Project, by revealing overall pricings, details

of overheads and profit margins, level of bonding and the overall commercial delivery structure for the Walsh Bay Project.

The overall complexity of the project arrangements, restaging and reordering of the timing of the project, the intricacies of the approvals process and a number of essential commercial terms which have changed in the finalisation of the agreements should very easily give rise to confusion and misinterpretation in relation to the project and could be of material detriment to the Government and the participants.

he feasibilities and any material concerning those feasibilities disclose highly commercially sensitive information about proposed prices for property at Walsh Bay and commercial rent structures allowed for in the feasibilities. Disclosure of any of this information will adversely affect the financial returns for the Walsh Bay Project by prejudicing future negotiations for prices and rentals for the Walsh Bay Precinct.

Accordingly, we support your claim for privilege in respect of all the documents relating to Walsh Bay which contain any commercially sensitive information particularly in respect of costings, financing, economic analysis and marketing.

Yours faithfully WALSH BAY FINANCE PTY LIMITED

GAVlN D.M. CARRIER Project Director

ROBERT G. McFEETER Project Director

2 December 2010

Mt Brendan O'ReiUy Director General Department of Premier and Cabinet Level 39, Governor Macquarie Tower 1 Farrer Place SYDNEY NSW 2000

Dear Mr O'Reilly Attention: Ms Rachael McCdum, Legal Branch

Oider for Papers-Revised HEZ Desktop Biobank Assessment

I am wf ihg to inform you that, on Thursday 2 December 2010, the Legislative Council ageed to the following resolution:

That, under standing order 52, there be laidupon the table of the House within 7 days of the date of passing of this resolution the'following documents created since 1 January 2009 in the possession, custody or control of the Minister for Planning or the Department of Planning:

(a) the Desktop Biobank Assessment of the Revised Hunter Employment Zone (HEZ) Masterplan, authored or subrnitted,by Eco Logical Australia Ptg Ltd,

@) all drafts of the Desktop Biobank Assessment of the Revised HEZ Masterplan, authored or submitted by Eco Logical Australia Pty Ltd, and

(c) all documents referring to the Desktop Biobank Assessment of the RevisedHEZ Masterplan, authored or submitted by Eco Logical Australia Pty Ltd, and


An extract from the Minutes of the Proceedings of the Legislative Council, Thursday 2 December -20%0,-en~l.0rpage-23%;is-a~a.~heded

Parliament House Tclcphonc (02) 9230 2321 Macquarie Street Sydney Facsimile (02) 9230 2761 NSW 2000 Australia [email protected]~.~o~au

The resolution requires the documents to be tabled within 7 days, that is Thursday 9 December 2010.

Yours sincerely

CIerk of the Parliaments

cc: The Hon John Hatzistergos MLC

2329 Legislative Council Minutes No. 1.84-Thursday 2 December 2010

10 ORDER FOR PAPERS--REVISED HE2 DESKTOP BIOBANK ASSESSMENT (Formal Business)

Mr Shoebridge moved, according lo notice: That, under standing order 52, there be laid upon the table of the House within 7 days of the date of passing of this resolution the following documents created since 1 January 2009 inthe possession, custody or control of the Minister for Planning or the D e p a ~ e n t of Planning:

(a) the Desktop Biobank Assessment of the Revised Hunter Employment Zone (HEZ) Masterplan, authored or submitteduby Eco Logical Australia Pty Ltd,

(b) all. d r a b of the Desktop Biobank Assessment of the Revised HEZ ~a$erplan, authored or submitted by Eco Logical Australia Ply Ltd, and

(c) all documents referring to the Desktop Biobank Assessment of the Revised HEZ Masterplan, authored or submitted by Eco Logical Aushalia Ply Ltd, and


Question put and passed.

NSW GOVERNMENT

Hon Tony Kelly WiLC

Minister for Pianning

Minister ior Infrastructure

Minister for Landr

Deputy Leader of the Government in the Legislative Council

Leader of the House in the Legislative Council

8 December 2010

Ms Rachel McCallum Acting Executive Director Legal Branch Department of Premier and Cabinet Level 37, Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000

Dear Ms McCallum

Standing Order 52 - Order for Papers Thirlmere Lakes

Rest area at Varroville Revised HEZ Desktop Biobank Assessment

I refer to your advice of the 0;ders by the Legislative Council for the production of all documents held by the Minister for Planning relating to Thirlmere Lakes, Rest area at Varroville and Revised HEZ Desktop Biobank Assessment.

I certify t'o the best of my knowledge all documents held by the Office of the Minister for Planning and covered by the terms of the resolution are attached.

Yours faithfully

Stephen Fenn Chief of Staff

Level 34, Governor Macqitarie Tower 1 Farrer Place, Sydney NSW 2000 T (02) 9228 3999 F (02) 9228 3988

Rooin 809 Parliament House Macqudrie Stleet, Sydney NSIN 2000 T (02) 9230 2528 F (02) 9230 2530

NSW GOVERNMENT

Premier & Cabinet

MEMORANDUM

To: Mr Stephen ~ e n n Chief of Staff Office of the Minister for Planning

From; Paul Miller General Counsel

Date: 1 December 201 0

URGENT

Subject: ORDER FOR PAPERS - Thirlmere Lakes

I write to inform you that on Wednesday, 1 December 2010 the Legislative Council agreed to the following Resolution:

That, under standing order 52, there be laid upon the table of the House within 28 days of the date ofpassing of this resolution the following documenfs created, since I January 1998, in the possession, custody or control of the Minister for Wafer, fhe NSW Office of Water, the Minister for Climate Change and the Environment, the Deparfmenf of Environment, Climate Change and Water, the Minister for Planning or the Department of Planning: '

(a) all documents relating to operations at fhe Tahmoor Colliety plating fo the potential or actualimpact of mining activities on aquifers or the Thirlmere Lakes,

(b) all documents relating to wafer loss at the Thirlmere Lakes, and

(c) any document which records or refers to fhe production of documents as a result of this order of the House.

An extract from the Minutes of the Proceedings of the Legislative Council, Wednesday, 1 December 2010, entry 21, page 2313, is attached.


The following guidelines apply to'your response to the Resolution.


All papers (other than Cabinet documents) which fall within the terms of the Resolution must be produced. Cabinet documents must not be produced (see section 6 below).



\ .

Please note that only photocopies of original papers and files are to be provided. All papers should be delivered by close of business on Friday 17 December 2010 to:

Ms Rachel McCallum ' Acting Executive Director, Legal Branch Department of Premier and Cabinet Level 37, Governor Macquarie Tower 1 Farrer Place SYDNEY NSW 2000




A document showing the standard format to be used when preparing an index under Standing Order 52 is enclosed at Annexure A. Please adhere to the standard format when preparing the index of documents.


Document The document number should follow the format 'I (a), l', where Number 'l(a)' refers to the relevant item of the Resolution, and '1' refers

to the first document in the group of documents that fall within item I (a).

Item The description of the relevant item as per the Resolution. For example, '~ocuments relating to any contract between X and Y' .


Date of creafion Where the exact date is unknown, insert an estimated date range if possible.


Privilege Claim If the index relates to privileged documents, write 'Yes'. If the index relates to non-privileged documents, write 'No'.

- .


A document showing the standard format to be used when making claims for privilege is enclosed at Annexure B. Where appropriate, please adhere to the standard format when making a claim for privilege.

If a privilege claim is challenged, the question of whether the document is privileged will be referred to a legal arbiter for a ruling.

It is therefore important that the basis of the claim' is clearly set out in the response to the Resolution so that the arbiter can properly assess the validity of the claim. There will be no opportunity to provide further submissions in support of a claim of privilege if it is challenged. I



This approach may be appropriate where, for example, a document contains a relatively small amount of personal information which may be subject to a claim for privilege on the grounds of privacy, but which is riot needed for the document to be understood. For example, letters to the Government on a particular issue could be produced on a 'non-privileged' basis with the names and addresses of the authors blacked out, with full copies provided on a 'privileged' basis.

4. Delivery and identification

Astime is critical, it would be appreciated if all papers could be delivered in file record boxes with the corresponding parts of the index affixed to the top of each box. For example, that part of the index which lists the documents contained in Box 1 should be attached to the top of Box 1.


The Legislative Council has also requested that agencies return documents in standard archive boxes (Type 1 boxes).

Further information about this type of box may be obtained from State Records at http://w.records. nsw.qov.aularr/docs/storaqeboxes.doc

5. Certification

Papers should be accompanied by a letter signed by you stating, "I certify to the best of my knowledge all documents held by the Office of the Minister for Planning and covered by the terms of the resolution have been provided".


Cabinet documents should not be produced or referred to in responding to the : Resolution.

All agencies are obliged to protect the confidentiality of Cabinet documents (refer to Premier's Memorandum 2006-08 Maintaining Confidentiality of Cabinef Documents and Other Cabinet Conventions).

7. Office Contact

Please provide the contact details of the officer, assigned to coordinate your Office's response to George Makrides as soon as possible.


Consistent with the usual practice, it' will be necessary for your Office $0 provide details of the costs incurred in complying with the resolution under separate cover for the Cabinet Standing Committee on Public Administration.

I seek your assistance in ensuring that your Office's documents are with the Legal Branch of the Department by close of business on Friday 17 December 2010.

Yours sincerely

General Counsel

/ Document No.

ltem I (a)(2) k-- ltem I (a)(3) r-

ENERGYAUSTRACIA


Item

Any proposal, agreement or lender between Walsh Bay Properties, Wakh Bay Partnership or Walsh Bay Finance Pty Ltd and the Government

Any proposal, agreement or tender between. Walsh Bay Properties, Walsh Bay hrlnership, Walsh Bay Finance Pty Ltd and the Government

Any proposal, agreement or tender between, Walsh Bay Properties, Walsh Bay Partnership, Walsh Bay Finance Pty Ltd and the Governmenl

Document

Letter Irorn Barry Webb & Associates to EnergyAustralia cc: Walsh Bay Properties

Letter from Deparlment of Urban Affairs & Planning to EnergyAuslralia

Letter from EnergyAustralia lo George Fioth Pty Ltd

Date of Creation

14 May 1996

8 July 1996

15 August 1996

Author

Steven Markis, Barry Webb 8, Associates

David Hume, Manager, Sydney South, Department of Urban Affairs and Planning.

Ian Swords for Manager Network Connections - Sou\h, EnergyAuslralia

1

Privilege Claim YIN?

No

No

No

SUBMISSION IN SUPPORT OF CLAIM FOR CONFIDENTIALITY AND PRlVlLEGE BY THE DEPARTMENT OF PUBLLC WORKS & SERVICES AND 1


I

The Marine Ministerial Holding Corporation ("MMHC") has entered into an agreement, for the redevelopment of a 15 hectare waterfront heritage site at Walsh Bay, with Walsh Bay Properties Pty Limited, Transfield (Walsh Bay) Pty Limited, Miwac (Walsh Bay) Pty Limited and Waish Bay Finance Pty Limited ("the Walsh Bay parties"). The Deparlment of Public Works & Services ("DPWS) has been appointed MMHC's agent in respect of the project.


Clause 27.16 of the Project Delivery Agreement provides:

"(a) Each parly agrees and undertakes to keep and maintain confidential all the terms covenants and conditions of this agreement any information supplied by one party to another under this agreement includjng but not limited to information provided by the Contractor to MMHC under clause 3.2(b) and not to djsclose those terms, covenants and conditions or any part of them or any information or part of that information to any person, company or organisation except as provided in this clause. .

(b) Nothing in this clause will prohibit the parties from disclosing any term, covenant or condition of this agreement:

1. Which it believes in good faith is required to be disclosed by law or by the ASX Listing Rules; or 2. Which was already in the lawful possession of the. recipient in written form; or 3. Is generally available to the public otherwise than by disclosure in breach of the terms ofthis clause; or .

4. To any consultant or contractor of a party, l o any proposed assignee or mortgagee or Financier of a party and their consullants, or to any person considering investing in the Project or their consultants for the ntlrnnnes nf

'

or in connection with any matter contemplated by this agreement; or 9 5. With theprior w i i e n consent of the other party.

z z M

(c) Nothing in this clause will prohibit MMHC from disclosing any term, covenant or condition of this agreement to the Government of the State of New South Wales or any'Minister of the Crown.

(d) Media releases in respect of the Projed must be jointly agreed between the parties. Both the Contractor an'd MMHC must keep each other informed of a name and emergency contact details of their representative who has authority to approve media releases on their behalf. Both pariies must ensure their representative is available on 24 hours notice to approve a media release. The Contractor acknowledges that the Minister for Ports has the right to make press releases in respect of the Project and is not bound by the provisions of this clause. MMHC must ensure the Minister is informed of the contents of this clause."

Obligations of confidentiality were also imposed by the terms of the original tender documents The parties, including MMHC, are therefore bound to keep confidential all documents or information datlng from either before or after the date of the Project Delivery Agreement.

- Notwithstanding this obligation, the Walsh Bay parties have agreed that MMHC may provide to the Parliament and make available to the public all documents other than those specified in the Return in Support of Claim for Privilege prepared by MMHC and DPWS.

The Walsh Bay parties have indicated that they regard the documents specified in the Returns, whether coming into existence before or after the'project Delivery Agreement, to be of such.a commercia[ly sensitive nature that release of the material contained in those documents will have serious adverse commercial implications for the Walsh Bay parties. Those adverse commercial implications include the following consequences:

1. Disclosure lo competitors of the methods and costings for the implementation, construction, financing and marketing of the project; and

2. Disclosure to potential purchasers of the costings for the projects.


1. Breach of contractual promises of confidentiality. \

2. Prejudice currentor future contractual or other relationships between Government and-the private sector. 3. Discourage future dealings with Government '

4. Cause loss of commercial advantage and competitiveness within the private sector. 5. Cause detriment to private sector participants. 6. Reduce Government's ability to deiiver the maximum public benefit.


Claims for Iegal professional privilege

It is.submitted that those documents listed in Department of Public Works Return as DPWS Departmental Files marked "Legal" and those documents which include legal advice in the Waterways Authority (Maritime Assets Division) Return are privileged and should n'ot be made public on one or more of.the available grounds of privilege pursuant io both common law doctrines and the statutory regime, in that:

1. they are, or contain a record of, confidential communications or documents brought into existence for the purpose of: (a) enabling MMHC and DPWS ("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


Client shares or shared a common interest in relation to the subject matLer of the advice received by one of them (common. interest privilege).

Claims for public interest immunity

It is submitted that those documents listed in the Department of Public Works Return and those documents listed in the Waterways Authority (Maritime Assets Division) Relurn are privileged and should not be made public on the grounds of privilege pursuant to both common law doctrines and the statutory regime, in that:

1, they are the subject of a claim of public interest immunity because the public interest in their disclosure is outweighed by a competing public interest in their suppression (public interest immunity) as:

it would involve disclosure of communications made in the course of development and promulgation of policy; disclosure would jnhibif frankness and candour in future pre-decision communications; \

disclosure will lead to confusion and unnecessary debate resulting from disclosure of decisional possibilities considered; it would involve disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken. being unfair to a decision-maker and prejudicial to the integrity of the decision-making process; the disclosure would impede the free flow of commercial[y sensitive information to the Government; and

because of all of the above, the ordinalybusiness of Government, which engages in contractual -relationships with commercial parties, will be prejudiced by the disclosure.


Dear Sir


We refer to the above Motion and to the documents in the pqssession of ~overnment relating to the redevelopment of Walsh Bay. We request that those documents for which the department intends to make a claim'for privilege and/or confidentiality should be kept confidential and not made public.


The making public of the details of cominercial arrangements between private enterprise and Government is a dangerous precedent as disclosure of commercially sensitive information will significantly prejudice the future ability of such private enierprise groups to prepare competitive bids and carry out commercial negotiations. Pursuant to that bid process, private participants provide commercially sensitive information to Government and then proceed to treat with Government in reliance upon Government keeping all such information and negotiations confidential. If such information is to be made public, this will discourage the private sector from future dealings with Government which will, of course, be to the ultimate detriment of the New South Wales public.

We believe that we, and the joint venture partners Transfield and M i ~ a c , will suffer direct and material commercial prejudice in relation tofuture dealings both with respect to the VValsh Bay Project and to commerciai transactions and dealing with other parties should 'this information come within the public domain.

In particular, disclosure of those materials which contain commercially sensitive information will directly and materially commercially prejudice us by revealing information about project development, delivery methods, transaction structures, "know how", operations and maintenance methods and engineering and construction methods, and, in

-- - the context of the Walsh Bay Redevelopment Project, by revealing overall pricings, details


The overall complexity of the project arrangements, restaging and reordering of the timing of the project, the intricacies of the approvals process and a number of essential commerc~al terms which have changed in the finalisation of the agreements should very easily give rise to confusion and misinterpretation in relation to the project,and could be of material detriment to the Government and the part~cipants.

The feasibilities and any material concerning those feasibilities disclose highly commercially sensitive information about proposed prices for property at Walsh Bay and commercial rent structures allowed for in the feasibilities. Disclosure of any of this information will adversely affect the financial returns for the Walsh Bay Project by prejudicing future negotiations for prices and rentals for the Walsh Bay Precinct.

Accordingly, we support' your claim for privilege in respect of all the documents relating to Walsh Bay which contain any commercially sensitive information particularly in respect of costings, financing, economic analysis and marketing.


GAVlN D.M. CARRIER Proiect Director

ROBERT G. McFEETER Proiect Director

ol-12-10:13:41 i

LEGISLATIVE COUNCLL

1 Dccember 2010

Mr Brendan O'Reilly Director G c n d Deparbenr of Premier and Cabinet Levcl33, Governor Macquarie Towee 1 Fmer Place SYDNEY NSW 2000

.Attention: Ms Rachael McCallum, Legal Branch

Order fot Papers-Thirhere Lakes

I am writing to inform you that, on Wednesday 1 Dccember 2010, the Legislative Council agreed to the following resolution:

That, under standing order 52, there be laid upon the kble of the Housc within 28 days of the dace of .passing of this resolurion the following documents, created since 1 January 1998, in the possession, custody or control of thc Minister for Water, the NSW Office of Water, theMinista for Climate Change and me Envitonment, the Deparhent oEEnvircnment, Climate and Change and Water, the Minist= for Planning or rhe Department of Planning:

(a) ,alldocuments relating to operadons at thcTahmoor Collietg rdadng to thepotenentialor actual impact of mining activities on aquifers or the ThirImere Lakes,

@) a 1 documents relating to water loss at the Tbirlmcxc Lakes, and

(c) any document which records or xefers to the of docurncnts as aresulc ofthis order of the Hotwe;

An extracr from the Minutes of the Proceedings of tbeLegislative Council, Wednesday 1 December 2010, entty 21, page 2313, is attached.

Pnrlismenr House Telephone (02) 9230 2321 Mzi.cquaxic Srrcek Sydney Facrimjlc (02) 9230 2761 NSW 2000 Aua~mlir [email protected]~~=u

As you will be aware, the Parliament dl be offidally closed when the resolution requires the documents to be tabled. Therefore, the Department ofl'xcmier and Cnbinet should regard the due date as Monday 10 January 2011.

Yours sincerely

urn L~vclock Clerk of the Parliaments

cc: The Hon John Hatzisictgos l\rlLC

2313 Legislative Council Minutes No. 183-Wcdnasday 1 Dccembtr 2010

21 ORDER FOR PAPERS--TRIRLMERF: LAKES (Formal Buslneas).

Ms Faehrmanri moved soughtthe leave of the House to amend private mcmhers' business item no. 252 by ornining "14 dayswand insening instead "28 days". , No objection taken.

Ms Paehrrnann moved, according to notice, asby lcavc amended:'~hat, under standing brdcr 52, therc bc laid upon the table of the House within 28 days of the datc of passing of this resolution thc following documents, crcatcd since 1 January 1998. in the possession, custody or control of the Minister for Wator, the NSW O B c e of Watcr, tbc Minister for Climate Change and the Environment, rha Department of Environmtnt, Climere and Change and Water, the Minisfer for Planning or the Department of Planning:

(a) all documem relating to operations at Me Tnhmoor Collic!y relating to the potential or actual impact of miniog activitics on aquifers orthc Thirlmere Lakes.

(b) all do~umcnts relating to water loss at (hc Thirlmcrc L&cs, and

(c) any document which records or refers to the production of documents & a result of this order of the House.

Question put and passcd.

- . -- -- ---- --."- vL & u u L u t lZZa9342 LEGAL BRANCH

URGENT .*&

To: Mr Stephen Fenn Chief of Staff Office of the Minister for Planning

+- NSW GOVERNMENT

From: Paul Miller General Counsel

Premier & Cabinet

Date: 1 December 201 0

Subject: ORDER FOR PAPERS - Rest area at Varroville

I write to inform you. that on Wednesday,. 1 December 2010 the Legislative Council agreed to the following Resolution:

Thaf, under sfanding order 52, there be laid upon the table of the House within 27 days of the date of passing of this resolution the following documenfs relating to the Roads and Traffic Aufhorify's proposed F5 Freeway truck rest area at Varroville, in fhe possession, custody or control of the Minister for Transport, fhe Roads and Traffic Authority (RJA), Transport NSW, the Minister for Roads or the Minister for Planning:

(a) any document arising from the RTA investigation underlaken in 2009 and referred to on page 2 (section 2.2) of fhe RTA paper "Truck Rest Area Strategy F5 Northbound':

(b) any correspondence with trucking or transporf companies or recognised trucking or transport industry bodies in relation to closure of the informal truck stop at the crossroads when the M7 opened and/or its replacement with another truck rest area,

(c) any correspondence between the RTA and the ~orn ish group or their representatives,

(d) any documents relating to RTA consultation with truck drivers or truck . driver representative bodies,

. . (e) any documents concerning the selection of the Varroville site for a truck

rest area,

(0 any documents relating to the purchase of adjoining Department of Planning land Lot 4 DP 239557,

(g) any correspondence befween ~am~bel i f6wn City Council and the RJA or fhe Minister for Roads, and

Governor Macquarie Tower, 1 Farrer Place. Sydney NSW 2000 a GPO Box 5341, Sydney NSW 2001 Tel: (02) 9228 5555 r F: (02) 9228 5249 . www.dpc.nsw.gov.au

(h) any document which records or refers fo the production of docu.menfs as a result of this order of fhe House.




All papers (other than Cabinet documents) which fall within the terms of the Resolution must be produced; Cabinet documents must not be produced.

. (see section 6 below).



Please note that only photow'pies of original papers and files are to be provided. All papers should be delivered by close of business on Wednesday 15 December 2010 to:

Ms Rachel McCallum Acting Executive Director, Legal Branch Department of Premier and Cabinet Level 37, Governor Macquarie Tower 1 Farrer Place SYDNEY NSW 2000






Document The document number should follow the format 'l(a), l', where Number '7 (a)' refers to the relevant item of the Resolution, and '1 ' refers

to the first document in the group of documents that fall within item 1 (a).

item The description of the relevant item as per the Resolution. For example, 'Documents,relating to any contract between X and Y'.


Date of creation Where the exact date is unknown, insert anestimated date range if possible.


Privilege Claim If the index relates to privileged documents, write 'Yes'. If the index relates to non-privileged documents, write 'No'. '


A document showing the standard format to be used when making claims for privilege is enclosed at Annexure 6. Where appropriate, please adhere to the standard format when making a claim for privilege.

If a privilege claim is challenged, the question of whether the document is privileged will be referred to a legal arbiter for a ruling.

It is therefore important that the basis of the claim is clearly set out in the response to the Resolution so that the arbiter can properly assess the validity ofZhe claim. There will be no opportunity to provide further submissions in support of a claim of privilege if it is challenged.



This approach may be appropriate where, for example, a document contains a relatively small amount.of personal information which may be subject to a claim for privilege on the grounds of privacy, but which is not needed for the document to be understood. For example, letters to the Government on a particular issue could be produced on a 'non-privileged' basis with the names and addresses of the authors blacked out, with full copies provided on a 'privileged' basis..


As time is critical, it would be appreciated if all papers could be delivered in file record boxes with the corresponding parts of the index affixed to the top of each box. For example, that part of the index which lists the documents contained in Box 1 should be attached to the top of Box 1.

Please place 'privileged' and 'non+privileged' documents in separate boxes.

The Legislative Council has also requested that agencies return documents in standard archive boxes (Type 1 boxes). Further information about this type of box may be obtained from State Records at http:lRniwv.records. nsw.aov.au/~rrldocs/storaaeboxes.doc




All agencies are obliged to protect the confidentiality of Cabinet documents (refer to Premier's Memorandum 2006-08 Maintaining Confidentiality of Cabinet Documents and Other Cabinet Conventions).

7. Office Contact

Please provide the contact details of the officer assigned to coordinate your Office's response to George Makrides as soon as possible.


Consistent with the usual practice, it will be necessary for your Office to provide details of the costs incurred in complying with the resolution under separate cover for the Cabinet Standing Committee on Public Administration.

I seek your assistance in ensuring that your Office's documents are with the Legal Branch of the Department by close of business on Wednesday 15 December 2010.

P$UI ~ i l l d r General Counsel

ENERGYAUSTRALIA


Document No.

Item 1 (a)(l)

Item I (a)(Z)

ltem I (a)(3)

Item

Any proposal, agreement or tender between Walsh Bay Properties, Walsh Bay Partnership or Wakh Bay Finance Pty Ltd and the Government

Any proposal, agreement or tender between, Walsh Bay Properties, Walsh Bay Partnership, Walsh Bay Finance Pty Ltd and the Government

Any proposal, agreement I or tender between, Walsh Bay properties; Walsh Bay Partnership, Walsh Bay Finance Pty Ltd and the Government

z . . 3

X d 3 M +

Document

Letler from Barry Webb & Associates to EnergyAustralia

.Network Connections - Soulh, EnergyAustralia

Author ' Date of Creation

14 May 1996

to George Fioth Ply Ltd

! , +

Privilege Claim YIN?

I

Steven Markis, Barry Webb &Associates I No

David Hume. Manager, No Sydney South, Department of Urban Affairs and Planning.

Ian Swords for Manager No

cc: Walsh Bay Properties I Letter from Department of Urban Affairs & Planning to EnergyAustralia

. . 8 July T996

I Letter from EnergyAustralia 15 August 1996

I SUBMlSSlON IN SUPPORT OF CLAIM FOR CONFIDENTIALITY AND PRIVILEGE I

BY THE DEPARTMENT OF PUBLIC WORKS & SERVICES AND MARINE MINISTERIAL HOLDING CORPORATION

WALSH BAY

The Marine Ministerial Holding Corporation rMMHC) has entered into an agreement, for the redevelopment of a 15 hectare waterfront heritage site at Walsh Bay, with Walsh Bay Properties Pty Limited, Transfield (Walsh Bay) Pty Limited. Mirvac (Walsh Bay) Pty Limited and Walsh Bay Finance Pty Limited ("the Walsh Bay parties"). The Department of Public Works & Services ("DPWS") has been appointed MMHC's agent in respect ofihe project.


Clause 27.16 of the Project Delivery Agreement provides: .,

"(a) Eachparty agrees and undertakes to keep and maintain confidential all the terms covenants and conditions of this agreement any information supplied by one party to another under this agreemenf including but not limited to information provided by the Contractor to MMHC under clause 3.2(b) and not to disclose those terms. covenants and conditions or any part of them or any information or part of that information to any person, company or organisation except as provided in this clause.

(b) Nothing in this clause will prohibit the parties from disclosing any tern, covenant or condition of this agreement:

1. which it believes in good faith is required to be disclosed by law or by the ASX Listing Rules; or 2. Which was already in the ladul possession of the, recipient in written form; or 3. Is generally available to the publicotherwise than by disclosure in breach of the terms of this clause; or 4. To any consullant or. contractor of a party, to any proposed assignee or mortgagee or Financiel; of a party and

their consultants, or to any person considering investing in the Project or their consultants for the nllmnsns nf or in connection with any matter contemplated by this agreement; or

5. Wih the prior written consent of the other pa@.

(c) Nothing in this clause will prohibit MMHC from disclosing any term, covenant or'condition of this agreement to the Governrnent.of the State of New South Wales or any Minister of the Crown.

(d) Media releases in respect of the Project must be jointiy agreed between the parties. Bolh the Contractor and MMHC must keep each other informed o fa name and emergency contact-details of their representative who has authority to approve media releases on their behalf. Both parties must ensure their representative is available on 24 hours notice to approve a media release. The Contractor acknowledges that the Minister for Ports has the right to make press releases in respect of the Project and is not bound by the provisions of this clause. MMHC must ensure the Minister is informed of the contents of this clause."

Obligations of confidentiality were also imposed by the terms of the original tender documents. The parties, including MMHC, are therefore bound fo keep confidential all documents or information dating from either before or after the date of the Project Delivery Agreement.

Notwithstanding this obligation, the Walsh Bay parties have agreed that MMHC may provide io the Parliament and make available to the public all documents other than those specified in the Return in Support of Claim for Privilege prepared by MMHC and DPWS.

The Walsh Bay parties have indicated that they regard the documents specified in the Returns, whether coming into existence before or after the Projeci Delivery Agreement, to be of such a commercially sensitive nature that release of the material contained in those documents will have serious adverse commercial ~mplications for the Walsh Bay parties. Those adverse commercial implications include the following consequences:

1. Disclosure to competitors of ihe methods and costings for the implementation;constru~tion, financing and marketing of the project; and

2. Disclosure to potential purchasers of the costings for the projects.

It is submitted that the documents should not be made public as the following detrirrient may arise:

'I. Breach of contractual promises of confidentiality. \

2. Preiudice current or future contractual or other relationships between Government and the' private sector. 3. ~ i s c o u r a ~ e future dealings with Government. 4. Cause loss of commercial advantage and competitiveness within the private sector. 5. Cause detriment to private sector parficipants. 6. Reduce Government's ability to deliver the maximum public benefit.

We attach a letter from the Walsh Bay parties in respect of their concerns


It is submitted that those documents listed in Department of Public Works Return as DPWS Departmental Files marked "Legal" and those documents which include legal advice in the Waterways Authority (Maritime Assets Division) Return are privileged and should not be made public on one or more of the available grounds of privilege pursuant to both common law doctrines and the statutory regime, in that:

1. they are, or contain a record of, confidential communications or documents brought into existence for the purposeof: (a) enabling MMHC and DPWS ("Client") to obtain, or itslegal 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 (legal professional privilege); 2. they are confidential communjcations or documents 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 (common interest privilege).

Claims For public interest immunity

It is submitied that those documents listed in the Department of Public Works Return and those documents listed in the Waterways Authority (Maritime Assets Division) Return are privileged and should not be made public on the grounds of privilege pursuant to both common law doctrines and the statutory regime, in that:

1. they are the subject of a claiin of public interest immunity because the public interest in their disclosure is outweighed by a competing public interest in their suppression (public interest immunity) as:

it would involve disclosure of communicalions made in the course of development and promulgation of policy; disclosure would inhibit frankness and candour in future pre-decision communications~ , disclosure will lead to confusion and unnecessary debate resulting from disclosure of decisional possibilities considered; it would involve disclosure of documents which do noifairl'y disclose the reasons for a decision subsequently taken, being unfair to a decision-maker and prejudicial to the integrity of the decision-making process; the disclosure would impede the free flow of commercially sensitive information to the Government; and

because of all of the above, the ordinary business of Government, which engages in contractual relationships with commercial parties, will be prejudiced by the disclosure.'


ear Sir

Re: Walsh Bay - Upper House'Motion dated 24 November 1999

We refer to the above Motion and to the documents in the possession of Government relating to the redevelopment of Walsh Bay. We request that those documents for which the department intends to make a claim for privilege andlor confidentiality should be kept confidential and not made public.


The making public of the details of commercial arrangements between private enterprise and Government is a dangerous precedent as disclosure of commercially sensitive ,

information will significantly prejudice the future ability of such private enterprise groups to prepare competitive bids and carry out commercial negotiations. Pursuant to that bid process, private participants provide commercially sensitive information to Government and then proceed to treat with Government in reliance upon Government keeping all such information and negotiations confidential. If such information is to be made public, this will discourage the private sector from future dealings with Government which.will, of course, be to the ultimate detriment of the New South Wales public.

We believe that we, and the joint venture partners Transfield and Mirvac, will suffer direct and material commercial prejudice in relation to future dealings both with respect to the Walsh Bay Project and to commercial transactions and dealing with other parties should this information come within the public domain.

In particular, disclosure of those materials which contain commercially sensitive ~nformation will directly and materially commercially prejudice us by revealing information about project development, delivery methods, transaction structures, "know how",

-. operations and maintenance methods and engineering and construdion methods, and, in the context of the Walsh Bay Redevelopment Project, by revealing overall pricings, details

of overheads and profit margins, level of bonding and the overall commercial delivery structure for the Walsh Bay Project:

The overall complexity of the'project arrangements, restaging and reordering of the timing of the project, the intricacies of the approvals process and a number of essential commercial terms which have changed in the finalisation of the agreements should very easily give rise to,confusion and misinterpretation in relation to the project qnd could be 07 material detriment to the Government and the participants.

The feasibilities and any material concerning those feasibilities disclose highly commercially sensitive information about proposed prices for property at Walsh Bay and commercial rent structures allowed for in the feasibilities. Disclosure of any of this information will adversely affect the financial returns for the Walsh Bay Project: by prejudicing future negotiations for prices and rentals for the Walsh Bay Precinct.

~ c c o r d i h ~ i ~ , we support your claim for.privilege in respect of all the documents relating to Walsh Bay which contain any commercially sensitive information particularly in respect of cosfings, financing, economic analysis and marketing.


GAVlN D.M. CARRIER Proiect Director

ROBERT G. McFEETER Proiect Director

I December 2010

Mr Brendan O'Reilly Director General Depamnent of Premiet and Cabinet Level 39, Governor Mecquarie Tower 1 Fsrrer Place SYDNEY NSW 2000

Dcar MI O'Reilly Attention: Ms Rachael McCallum, Legal Branch

Order for Papers-Rest area at Va~roville

I un writing to inform you that, on Wednesday 1 Decernbe 2010, the Legislative Council agreed to the following rcsoludon:

That, uader standing order 52, there be laid upon the table of the House within 21 days of the date' of passing of this resolution the following documents relating to the Roads and Traffic Authodty's pioposed F5 Freeway h c k rest area ar Vanoville, in the possession, custody or control of the Minisrcr fur Transport, the Roads and Traffic Authozitg (RTA), Txansporc NSW, the Minister for Roads or the Minister for Planning:

(a) any documenr ad&g from the RTA investigation undtrraken in 2009 and refmcd to on page 2 (section 2.2) of the RTA paper 'Truck Rest Area Strategy F5 Northbound",

@) any correspondence with trucking or transport companies orrecognisrd trucking or transport industry bodies in relation to closurc of the informal truckstop opt the crossroads when them opened and/or its replacement with another rruck rest area,

(c) any cortcspondence benvcm the RTA end the Cornish Group or their representatives,

(d) any documcnts relating to RTA consultation with truck drivcrs or t ~ c k dtiver representadvc bodies,

(e) any documents concerning the selection of the Varroville site for a truck rcst sea,

CII) any corxcspondence bermeen Campbelltown Cjty Council and rhc RTA or the Ministex for Roads, and

Pmdinmenr Howc Telcphosc (02) 9230 2321 Micquaris Succc Sydnsy Facsimile (02) 9230 2761 NSW ZOO0 Ausrrla c~undl@puli~rncntns~gov.au

(h) 2ny document which records or refers to the production of documenw as a. result of this orda of the House. '

An extract from theMinutes o f the Proceedings of chc Legklative Coundl, Wednesday 1 Deccmher 2010, enuy 16, page 2309, is attached. ,

TheresolurionrequLes the docurnen& to be tablidwithin 21 days, that is Wednesday 22December 2010.

CLyXn ~ o v e ~ d c k Clerk of the Parliarnone

cc: Thc Hon John Haaiscergos MLC

2309 Legislative Council Minutes No. 183-Wedncsdny 1 December 2010

16 ORDER FOR PAPERSREST AREA AT VARKOVILLE (Formal Business)

Ms Fachrmann moved, according to notice: That, understanding order 52, thcrc be laid upon the ta& of the Hounc within 21 days ofthe date of passing of this ~solufion the following documents relating to the b a d s and Traffic Authority's proposed F5 Freeway truck rest area at Vamville, in the fiossscssion, custody or control ofthe Minister for Transpoq the Roeds wP Traffic Authority (RTA), TransponNSW, fhe Minister for Roads or the Minisrer for Planning:

(a) any document arising fmm [he RTA investigation underiaken in 2009 aid referred to on page 2 (seocion 2.2) ofthe RTA paper "Truck Rest Arca Strategy F5 Northbound':

(b) any correspondence with trucking or transport cornpanics or rccognised trucking or wansport indusby bodies in relurion to closure of the iriformel truck stop at the crossrouds when thc M7 opened andlnr its replecemcnt with another truck test area, ,

(c) any correipondcnce beween the RTA and the Cornish Group or their raprcsentativcs,

(d) my d~cumentr relating to RTA consultation with rmck drivers or truck drivcr represcntarive bodies,

(e) any documents cbnceming the selection of the ~ a i o v i l l e site for atruck rest area, ,

(0 sny documents relating to the purchasc of adjoining Depanment of Planning land Lot 4 DP 239551,

(g) any correspandcnce bctwccn Carnpbclltown City Council and theRTA or ?he Minister fdr Roads, and

(h) any document which records or refers to the production of documCnTs ac a result of this order of the Hausc.

Quostion pur and passed.

""I 2. A" 1 ' V V . V - I - "L L " " L O I " , " -. U L L O J J q L U l m L ONAIYLH

URGENT .$$).

To: Mr Stephen Fenn Chief of Staff Office of the Minister for Planning

!!%?r)l!

From: Paul Miller General Counsel

Premier : .

& Cabinet

Date: 2 December 2010

Subject: ORDER FOR PAPERS - Revised HEZ Desktop Biobank Assessment

I write to inform you that on Thursday, 2 December 2010 the Legislative Council agreed to the following Resolution:

That, under standing order 52, there be laid upon the table of the House within 7 days of the date of passing of this resolution the following documents created since 7 January 2009 in the possession, custody or control of the Minister for Planning or the Departipent of Planning:

(a) the Desktop Biobank Assessment of the Revised Hunter Employment Zone (HEZ) Masterplan, authored or submiffed by Eco Logical Australia Pty Ltd,

(b) all drafts of the Desktop Biobank Assessment of the Revised HEZ Masterplan, authored or submitted by Eco Logical Australia Pty Ltd, and

(c) all documents referring to the Desktop Biobank Assessment of fhe Revised HEZ Masterplan, authored or submitfed by Eco Logical Australia Pty Ltd, and

(d) any document which records orrefers to the production of documents as a result of this order of the House.

An extract from the Minutes of the Proceedings of the Legislative Council, Thursday, 2 December 2010, entry 10, page 2329, is attached.



I . Provlsion of Papers

All papers (other than Cabinet documents) which fall within the terms of the Resolution must be produced. Cabinet documents must not be produced (see section 6 below).



I

Please note that only photocopies of original papers and files are to be provided. All papers should be delivered by close of business on Tuesday, 7 December 2010 to:

Ms Rachel McCallum Acting Executive Director, Legal Branch Department of Premier and Cabinet Level 37, Governor Macquarie Tower 1 Farrer Place SYDNEY NSW 2000



Standing Order 52(3) provides that, 'A return under this, order is to include an indexed list ofall documents tabled, showing the date of creation of the document, a description of the document and the author of the document'.



Document The document number should follow the format 'l(a), l', where Number 'l(a)' refers to the relevant item of the Resolution, and '1' refers

to the first document in the group of documents that fall within item l(a).

The description of the relevant item as per the Resolution. For example, 'Documents relating to any contract between X and Y'.

Document A short description of the relevant document. For example, 'Letter from X to Y', .

Date'of creation Where the exact date is unknown, insert an estimated date range if possible.


Prjvilege Claim If the index relates to privileged documents, write 'Yes'. If the index relates to non-privileged documents, write 'No'.

""I -- A" I.\. Y " . U + "1 L " " L a ,a,., - -.-

S Z Z U 3 D 4 2 . LEGAL BRANCH


A document showing the standard format to be used when making claims for privilege is enclosed at Annexure B. Where appropriate, please adhere to the standard format ' when making a claim for privilege.

If a privilege claim is challenged, the question of whether the document is privileged will be referred to a legal arbiter for a ruling. ,

It is therefore important that the basis of the ciaim is clearly set out in the response to the Resolution so that the arbiter can properly assess the validity of the claim. There will be no opportunity to provide further submissions in support of a claim of privilege if it is challenged.

Please note that a separate index is required for 'no;-privileged> and 'privileged' documents as these types of documents are returned separately.


This approach may be appropriate where, for example, a document contains a relatively small amount of personal information which may be subject to a claim for privilege on the grounds of privacy, but which is not needed for the document to be understood. For example, letters to the Government on a particular issue could be produced on a 'non-privileged' basis with the names and addresses of the authors blacked out, with full copies provided on a 'privileged' basis.


As time is critical, it would be appreciated if all papers could be delivered in file record boxes with the corresponding parts of the index affixed to the top of each box. For example, that part of the index which lists the documents contained in Box 1 should be attached to the top of Box I.


The Legislative Council has also requestedthat agencies return documents in standard archive boxes (Type 1 boxes).

Further information about this type of box may be obtained from State Records at http://www.records, nsw.qov.au/qrr/docs/storaaeboxes.doc

5. Certification


6. cabinet Documents


All agencies are obliged to protect the confidentiality of cabinet documents (refer to Premier's Memorandum 2006-08 Maintaining Confidentiality of Cabinet Docurnenfs and Other Cabinet Conventions). I

7. Office Contact

Please provide the contact details of the officer assigned to coordinate your Office's response to George Makrides as soon as possible.


Consistent with the usual practice, it will be necessary for your Office to provide details of the costs incurred in complying with the resolution under separate cover for the Cabinet Standing Committee on Public Administration.

I seek your assistance in ensuring that your Office's documents are with the Legal Branch of the Department by close of business on Tuesday, 7 December 2010.

Ypurs siycerely

114 General ounsel :

ENERGYAUSTRALIA

ORDER FOR PAPERS -REDEVELOPMENT OF WALSH BAY

Document No.

Item 1 (a)(l)

or tender between, Watsh Bay Properties, Walsh Bay Partnership. Walsh Bay Finance Pty Ltd and the Government

Item

Item 1 (a)(2)

Any proposal, agreement or tender between Walsh Bay Properlies. Walsh Bay Partnership or Walsh Bay Finance Ply Ltd and the Government

I South, EnergyAustralia I

Document

Any proposal, agreement or tender between, Walsh Bay Properties, Walsh Bay Partnership. Walsh Bay Finance Pty Ltd and the Government

I I

Letter from Barry Webb & Associates to EnergyAustralia cc: Walsh Bay Properties

t

Date of Creation

Letter from ~e~artmeni'cif Urban Affairs & Planning to. EnergyAustralia

14 May 1996

Author

8 July 1996

R

r Letter from EnergyAustralia to George Fioth Ply Ltd

Privilege Claim

1 MN?

1

Steven Markis, Bany Webb & Associates

I C N

David Hume. Manager, Sydney South. Department of Urban Affairs and Planning.

15 August 1996

No

No

Ian Swords for Manager Network Connections -

c h h

No

a o U

SUBMISSION IN SUPPORT OF CLAIM FOR CONFlDENTlALITY AND PRIVILEGE BY THE DEPARTMENT OF PUELlC WORKS 8 SERVICES AND


The Marine Ministerial Holding Corporation ("MMHC") has ent&ed into an agreement, for the redevelopment of a 15 hectare waterfront heritage site at Walsh Bay, with Walsh Bay Properties Pty Limited, Transfietd (Walsh Bay) Ply Limited, M i ~ a c (Walsh Bay) Pty Limited and Walsh Bay Finance Ply Limited ('the Walsh Bay parties"). The Department of Public Works & Services ("DPWS") has been appointed MMHC's agent in respect of the project.

All documents and material passing to MMHC from the Walsh Bay parties were provided on the basis that they,.and all material arising out of those documents, were, and would continue to remain, "commercial in confidence". Further, undei the terms of the Project Delivery Agreement dated October 1997 between MMHC and the Walsh Bay parties, the parties have specifically agreed to maintain confidential all information .relating to the project.

Clause 27.16 of the Project Delivery Agreement provides: . .

"(a) Each party agrees and undertakes to keep and maintain confidential all the terms covenants and conditions of this agreement any information supplied by one party toanother under this agreement including but not limited to information provided by the Contractor to MMHC under clause 3.2(b) and not to disclose those terms, covenants and conditions or any part of them or any information or part of that information to any person, company or organisation except as provided in this clause.

(b) Nothing in this clause wit[ prohibit the parties from disdosing any term, covenant or condition of this agreement:

1. Which it believes in good faith is required to be disclosed by law or by the ASX Listing Rules; or 2. ,

Which was already in the ladul possession of the recipient in written form; or 3. Is generally available to the public otherwise than by disclosure in breach of the terms of this clause; or 4. To any consultant or contractor of a party, to any proposed assignee or mortgagee or Financief of a party and

their consultants, or to any person considering investing in the Project or their consultants for the nilrnnsns nf or in connection with any matter contemplated by this agreement; or k

5. With the prior written consent of the other party. 2 R C Y m

(c) Nothing in this clause will prohibit MMHC from disclosing any term, covenant or condition of this agreement to the Government of the State of New South Wales or any Minister of the Crown.

(d) Media releases in respect of the Project must be jointly agreed between the parfies. Both the Contractor and MMHC must keep each ofher informed of a name and emergency contact details of their representative who has authority to approve media releases on their behalf. Both paRies must ensure their representative is available on 24 hours notice to approve a media release. The contractor acknowledges that the Minister for Ports has the right to make press releases in respect of the Project and is not bound by the provisions of this clause. MMHC must ensure fhe Minister is informed of the contents of this clause."

Obligations of confidentiality were also imposed by the terms of the original tender documents. The parties, including MMHC, are therefore bound to keep confidential all documents or information dating from either before or after the date of the Project Delivery Agreement.

~ohrvithstanding this obligation, the Walsh Bay parties have agreed that MMHC may provide to the Parliament and make available to the public all documents other than those specfied in the Return in Support of Claim forprivilege prepared by MMHC and DPWS.

The Walsh Bay parties have indicated that they regard the documents specified in the Returns, whether coming into existence before or after the'project Delivery Agreement. to be of such a commercially sensitive nature that release of the material contained in those documents will have serious adverse commercial implications for the Walsh Bay parties. Those adverse commercial implications inc!ude the following consequences:

1. Disclosure to competitors of the methods and costings for the implementation, construction, financing and marketing of the project; and

2. Disclosure to potential purchasers of the castings for the projects.


1. Breach of contractual promises of confidentiality. , 2. Prejudice current or future contractual or other relationships between Government and the private sector. 3. Discourage future dealings with Government. 4. Cause loss of commercial advantage and competitiveness within the private sector. 5. Cause detriment to private sector participants. 6. Reduce Government's ability to deliver the maximum public benefit



It is submitted that those documents listed in Department of Public Works Return as DPWS Departmental ~ i les ' marked "Legal' and those documents which include legal advice in the Waterways Authority (Maritime Assets Division) Return are privileged and i should not be made public on one or more of the available grounds of privilege pursuant to bpth common law doctrines and the

I

statutory regime, in that: ' .

1. they are, or contain a record of, confidential communications or documents tjrought into existence for the purpose of: t <

(a) enabling MMHC and DPWS ("Client") to obtain, or its legal advisers to give, legal advice: or (b) for use in actual litigation or litigation reasonably contemplatedby the Client and inrespect of which privilege has


Client shares or shared a common interest in relation to the subject matter of the advice received by one of them (common interest privilege). . ).

6 C C

Claims f o r public interest immunity e h

It is submitted that those documents listed in the ~epakrnent of Public Works Return and those documents listed in the Waterways k Authority (Maritime Assets Division) Return are privileged and should not be made public on the grounds of privilege pursuant to f both common law doctrines and the statutory regime, in that: b

5

1. they are the subject of a claim.of public interest immunity because the public interest in their disclosure is outweighed by a competing public interest in their suppression (public interest immunity) as:

it would involve disclosure of communications made in the course of development and promulgation of policy; 9 disclosure would inhibit frankness and candour in future pre-decision communications; ,

disclosure will lead to confusiori and unnecessary debate resulting from disclosure of decisional possibilities considered; . it would involve disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken. being unfair to a decision-maker and prejudicial to the integrity of the decision-making process; the disclosure would impede the free flow of commercially sensitive informationto the Government; and

because of all of the above, the ordinary business of Government, which engages in contractual relationships with commercial parties, will be prejudiced by the disclosure.

Mr Dick Persson Director General Department of Public Works and Services Levki 21, McKeil Building 2- 24 Rawson Place SYDNEY NSW 2000

Dear Sir


We refer to the above Motion and to the documents in the possession of Government relating to the redevelopment of Walsh Bay. We request that those documents for which the department intends to make a claim for privilege and/or confidentiality should be kept confidential and not made public.

We believe that public disclosure of those documents would adversely affect the ability of Project to achieve its full potentiaiiand reduce our ability to deliver the maximum public benefit.

The making public of the details of commercial arrangements between private enterprise and Government is a dangerous precedent as disclosure of commercially sensitive information will significantly prejudice the future ability of such private enterprise groups to prepare competitive .bid,s and carry out commercial negotiations. Pursuant to that bid process, private participants.provide commercially sensitive information to 'Government and then proceed to treat with Government in reliance upon Government keeping all such information and negotiations confidential. If such information is to be made public, this will discourage the private sector from future dealings with Government which will, of course, be to the ultimate detriment of the New South Wales public.

We believe that we, and the joint venture partners Transfield and Mirvac, will suffer direct and material commercial prejudice in relation to future dealings both with respect to the Walsh Bay Project and to commercial transactions and deaiing,with other parties should this information come within the public domain.

In particular, disclosure of those materials which contain commercially sensitive information will directly and materially commercially prejudice us by revealing information about project development, delivery methods, transaction structures, "know how",

. operations and maintenance methods and engineering and construction methods, and, in the context of the Walsh Bay Redevelopment Project, by revealing overall pricings, details

v L U i l \ r uo.d.? I'M 01 L JLILU I W I J . t l Z Z Y 5 5 4 2 LEGAL BRANCH


The overall complexity of the project arrangements, restaging and reordering of the timing of the project, the intricacies of the approvals process and a number of essential commercial terms which have changed in the finalisation of the agreements should very easily give rise to confusion and misinterpretation in relation to the project end could be of material detriment to the Government and the participants.

The feasibllities and any material concerning those feasibilities disclose highly commercially sensitive information about proposed prices for propedy at Walsh Bay and commercial rent structures allowed for in the feasibilities. Disclosure of any of this information will adversely affect the financial returns for the Walsh Bay Project by prejudicing future negotiations for prices and rentals for the Walsh Bay Precinct.

Accordingly, we support your claim for privilege in respect of all the documents relating to Walsh Bay which contain any commercially sensitive information particularly in respect of castings, financing, economic analysis and marketing.

Yours faithfully . WALSH BAY FINANCE PN LIMITED

GAVlN D.M. CARRIER . . . - ' 1 : ' ROBERT G. McFEETER Proiect Director . .

:. .

... , . . . Proiect Director

~~ ~- - ..-. ---"""-- UU..'." u.,m""n w "I' :812 91302878 e 1 / 3

02-12-10:14:7B :

LEGISLATIVE COUNCIL

2 December 2010

Mr Brendan O'RedIy Director General Rcparbncnt of Prcmim and Cabinet Level 39, Governor Macquarie Tower 1 Parrer Place SYDNEY NSW 2000

Dear Mx O X d y Attention: Ms Rachael McCdum, Legal Braoch

Order for papers-Revised H E Z Desktop Biobank Assessment

I am wridng to inform you that on Thursday 2 December 2010, rhc Legislative Council agreed to the following resolution:

That, under sunding order 52, there bc laid upon rhc table of the House within 7 days of the date of passing of this resolution the foUoW;.g documents created since 1 January 2009 in rhc poss~ssion, custody or coatTOl of the W t c t for Planning or the Department of Planning:

,(a) chc Desktop Biobank Assessment of the Revised Hunter ~ p l o y m e n t Zone (HEZ) Masterplan, aurhored or submitted by Eco Logical Australia Prj Ltd,

(b) all drafts of h e Desktop Biobank Assessment of fie ~evised HEZ Masterplan, aurhored or submitted by Eco Logical Austlalia Pty Ltd, and . .

(c) all docllments referring to the Desktop Biobank Assessment of the Revised HE2 Mastcrplan, authored or submitted by ECO Logical Australia Pty Ltd, and

(d) any documentwhich records or rcfers to the production of documents as a result of this order of thc House.

An extrscr from the Minutes of the Proceedings of the Legislative Council, Thursday 2 December 201~07en~1~0;pag~-23S~~*am~hed.

Rrlirmeot Housc TcL~phonc (02) 9230 2321 MGqundc S ~ r c c t Sydney Facaimilc (02) 9230 2761 NSW 2000 Aurtrolia [email protected]~,~~

V U , L L IY rnr u 0 . 4 0 m n 01 I Y V L U I U I J 92285542 LEGAL BRANCH El013

0 2 - 1 1 - 1 0 : 1 4 : 5 8 : :a12 82302878 it 2, 3

The resolution requites the documents to be tabled within 7 days, that is Thursday 9 December 201 0.

Yours sincerely

cc: The Hon John Hatzistergos MLC

- - . -- -- ...* V " . " " 2 - n v * L 3 U L 3 I 3 , J V L Z L ( 3 3 4 Z LEGAL BRANCH 02-?2-10:14:f'Z : : a 1 2 82302876

La014 - * 3 / 3

2329 Legislative Council Minutes No. I.S&Thursday 2December 2010

10 ORDER FOR PAPERS--REVISED EEZ DESKTOP BIOBANK ASSESSMENT (Formal Businws)

Mr Shoebridge moved, according to notice: That, under standing order 52, thcrc bc laid upon thc rablc of , -- the House within 7 days of t h ~ date of passing of this resolution tho following documenls created sincc 1 . laauary 2009 in.thc possession, custody or. mnlrbl of the Minister for Planning or the Dkparrmcnt of Planning: . .

(a) thc Desktop Biobank Assessment of the Revised Hunter Ernploymcn! Zone @Z) Masrerplan, authored or subrnincd.by Eco Logical Australia Pty Ltd,

@) . all,drafu of tho Dcslrrop Biobank Assessment of thc Revised HEZ ~as1erplan. authored or submined by EcoLogical Ausiralia Pty Ltd, y d

(c) all document9 fefCrring to the Desktop Biobank Assessment of the Revised HEZ Masterplan, authored or submitted by.Eca Logical Australia Pty Ltd. and

(d) any document which rccords or refers ul the produotion of documenls as e result of this order of The House.

2.

Question put and passod.

NSW Cabinet

Documents

Transcript of NSW Cabinet