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On 2 July 2026, the NSW Civil and Administrative Tribunal (NCAT) delivered two closely related decisions in proceedings brought by the Mudgee Region Health Alliance (the Alliance), a community group protesting the proposed Bowdens Silver Project (an open-cut silver mine near Mudgee).
The cases — Mudgee Region Health Alliance v Minister for Finance, Domestic Manufacturing and Government Procurement and Natural Resources [2026] NSWCATAD 195 and Mudgee Region Health Alliance v Department of Planning, Housing and Infrastructure [2026] NSWCATAD 194 — centred on access applications under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). They highlight the tension between public transparency, accountability, and protections for government processes and commercial interests in major development projects.
The Applicant in the cases was the Alliance; the Respondent was the Minister for Finance (the Minister) and the Department of Planning, Housing and Infrastructure (Department of Planning) respectively. Swaab represented Bowdens Silver and Silver Mines Ltd (Bowdens) as the interested party in both sets of proceedings.
Background
The request for information from the Alliance follows the decision by the NSW Court of Appeal in Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 to declare the development consent for the Bowdens Silver Project void. The Court ruled that a proposed transmission line was an integral part of the development, and its impacts had not been properly assessed.
Subsequent legislative amendments to the Environmental Planning and Assessment Act 1979 and ongoing re-approval processes followed. The Alliance sought documents under the GIPA Act concerning correspondence between government offices/ministers and Bowdens, as well as documents relating to internal deliberations, legal advice, and responses to the Court of Appeal decision.
Bowdens was consulted as a third party and strongly objected to disclosure of several documents.
Key Issues and Tribunal Decisions
1. Minister’s Office Case ([2026] NSWCATAD 195)
The Tribunal (Senior Member Emeritus Prof R Graycar) considered whether claims of cabinet information applied to House Folder Notes prepared for Budget Estimates and whether parliamentary privilege applied to notes and caucus briefings for parliamentary use. The Tribunal also considered public interest factors against disclosure in relation to a key briefing note from Bowdens to the Minister, marked “commercial-in-confidence.”
The Tribunal affirmed the decision to refuse the release of cabinet/parliamentary materials and the commercial in confidence briefing note. Factors against disclosure (prejudice to confidential supply of information, agency functions, and the proponent’s business/financial interests) outweighed transparency interests argued by the Alliance.
2. Department of Planning Case ([2026] NSWCATAD 194)
This case involved more operational documents, including legal advice and correspondence between the Department of Planning and Bowdens legal representatives. Arguments related to various ‘public interest factors,’ including prejudice to supply of confidential information, prejudice to deliberative processes, prejudice to the effective exercise of agency functions, and prejudice to the proponent’s commercial interests.
The Tribunal addressed evidentiary objections, affirming that while not bound by strict evidence rules, findings must rest on logically probative material and not mere speculation. The Tribunal affirmed the decision to refuse contested documents, particularly where strong commercial/deliberative protections applied.
Legal Significance
These decisions reinforce several important principles which apply in respect of applications for government documents made under the GIPA Act:
- Strong protections exist for core government functions: Cabinet documents, parliamentary materials, and legal advice receive near-absolute protection. The Tribunal’s role is limited when Cabinet information is claimed.
- Commercial-in-confidence information: Proponents’ submissions to government, especially in respect of sensitive development projects, can attract significant weight if disclosure risks harming negotiations, or future engagement with regulators.
- Balancing exercise: Public interest in transparency, environmental accountability, and community participation is real but not unlimited. It must be weighed against prejudice to deliberative processes and third-party interests.
Together, the rulings demonstrate a pragmatic approach to upholding protections where genuine harm to government operations or commercial negotiations could occur. They provide guidance for future GIPA disputes involving major infrastructure/mining projects in NSW.
Implications for the Public and Proponents of Development Projects
For activist groups, the cases underscore the limitations in obtaining government and commercial-in-confidence documents relating to development projects. For government and industry, they affirm that frank engagement and the provision of sensitive advice can be protected when confidentiality is reasonably expected.
The Bowdens project continues through a re-approval process. These NCAT decisions contribute to the evolving jurisprudence on open government in the context of ecologically sensitive and economically significant development projects. The full judgments can be accessed at the following links:
If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au. This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
For further information please contact:
Michael Byrnes, Partner
Phone: + 61 2 9233 5544
Email: mjb@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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