On 16 January 2020, the NSW Civil and Administrative Tribunal (“NCAT”) issued a determination in relation to a request made by a Victorian-based company, Forbidden Foods Pty Ltd, to the RMB under the Government Information (Public Access) Act 2009 (“GIPA Act”) (formerly Freedom of Information). Forbidden Foods Pty Ltd sought five years’ worth of RMB records relating to its decision to grant and/or renew the Sole and Exclusive Export Licence to SunRice. The RMB is a statutory board, and so we are required to comply with the GIPA legislation.
Many of the documents requested by Forbidden Foods were reports by SunRice and were marked as either “confidential” or “commercial-in-confidence” at the time they were provided to the RMB. The RMB therefore informed SunRice of the request and having confirmed the sensitivity of information contained in the SunRice reports, the RMB advised Forbidden Foods that it was not prepared to provide these documents. Forbidden Foods then requested a review of the RMB’s decision by the NSW Information and Privacy Commissioner and later a further review by the NCAT. NCAT subsequently agreed that some of the documents that the RMB was unwilling to disclose were confidential but considered that, on balance, it was in the public interest that they be released. The RMB and SunRice are now considering the detail in the NCAT determination and their legal options.
There has been some media commentary about NCAT’s determination including that vesting is limiting the potential of the rice industry. Vesting is subjected to a review by the NSW Government every five years and NSW growers have overwhelmingly indicated their support for the arrangement during each of the reviews. As a NSW rice grower, you would also know that the RMB undertakes an annual assessment of SunRice’s performance under the SEEL and that the resulting determination of the financial benefit arising from having a single export agent is made known to you.
For more information on any of the above matters, please contact Carol Chiswell on 02 6953 3200.