Beer v Commissioner of Police NSW Police Force

NCAT Appeal Panel|2014-03-12

Introduction 1Mr Beer has appealed to the Appeal Panel against two decisions of the Tribunal. The first decision was that the Commissioner of Police did not hold certain documents that Mr Beer had applied for under the Government Information (Public Access) Act 2009 (NSW) and so could not provide those documents to him: Beer v Commissioner of Police NSW Police Force [2013] NSWADT 243. The second decision was not to prohibit or restrict the disclosure of Mr Beer's name in the reasons for decision: Beer v Commissioner of Police NSW Police Force [2014] NSWCATAD 23. We will refer to these decisions as the substantive decision and the anonymisation decision. 2In relation to the substantive decision Mr Beer's grounds of appeal are that: (1)the Tribunal incorrectly found that he believed that he has been under surveillance by unidentified or retired police officers since 1972; and (2)the Tribunal breached his privacy or otherwise treated him inappropriately by including a reference in its decision to the alleged offence about which Mr Beer had been questioned by police in 1972. 3In relation to the anonymisation decision Mr Beer's grounds of appeal are that: (1)s 15A of the Children (Criminal Proceedings) Act 1987 makes it an offence for the Tribunal to publish his name; and (2)when determining whether to prohibit or restrict the publication of Mr Beer's name under section 75 of the Administrative Decisions Tribunal Act 1997, the Tribunal failed to take into account the public policy considerations reflected in s 15A of the Children (Criminal Proceedings) Act 1987.

Background 6The background to the proceedings is set out in the Tribunal's anonymisation decision at [1]-[2]: (1) Mr Beer made an application to the Administrative Decisions Tribunal (the ADT) under the Government Information (Public Access) Act 2009 (the GIPA Act). The major issue in that proceeding was whether the Commissioner of Police had conducted an adequate search for the information that Mr Beer had requested. On 4 October 2013 I found that search had been adequate and affirmed the Commissioner's decision that the Agency did not hold that information: see Beer v Commissioner of Police NSW Police Force [2013] NSWADT 243. (2) The information Mr Beer had sought was an interview report relating to an interview of him by two police officers at Fairfield Police Station in June or July 1972. He also wanted the names and ages of the officers involved, a copy of "so-called" witness statements and the name of "the accuser." (3) Mr Beer wrote to the Tribunal requesting that his name be anonymised in that decision, so that his identity would not be apparent. At my request the Registrar sought the views of the Commissioner with respect to Mr Beer's request. The Commissioner considered it a matter for the Tribunal. (4) I declined to order that his name and identity not be disclosed.

Mistaken finding that Mr Beer believed he had been under surveillance since 1972 7At paragraphs [26] and [27] of the substantive decision, the Tribunal wrote that: [26] I note that Mr Beer has also asserted that he believes that he has been under surveillance by unidentified or retired police officers since 1972. This has occurred as recently as 10 January 2010, when he took a photograph of a man he asserts was watching him. Mr Beer believes that this surveillance is associated with the officers who interviewed him and represents continued police action with respect to the alleged offences in 1972. He showed that photograph to the Agency's representative at a planning meeting. [27] He has made a complaint about this conduct to the NSW Police Integrity Commission, who referred it to the Internal Investigations Unit. They did not deal with the complaint as the police officer was not identified. Mr Beer relied on this surveillance to argue that the events about which he sought information were current, and not 40 years past. 8The discussion about the unidentified man referred to in [26] and [27] of the Tribunal's decision allegedly took place during what is known as a "planning meeting" at the Tribunal. Those meetings are not recorded. 9Mr Beer says that the Tribunal's finding, that he believes that he has been under surveillance, is untrue and prejudicial to him. He denies saying words to that effect in any of the Tribunal's planning meetings. Mr Beer agrees that at the second planning meeting there were discussions about a photograph of a man who he says was watching him and that the Judicial Member must have either misheard what he said about the photograph or misunderstood the point he was making about the activity shown in the photograph. There was no other evidence as to what was said at the planning meeting. 10Mr Beer does not seek to set aside the Tribunal's decision. He merely requests that the allegedly mistaken finding be deleted or corrected. 11Mr Beer has the right to appeal against an "appealable decision" as defined in section 112: s ADT Act, 113 (1). Section 112 provided that: (1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: (a) An original decision where the enactment under which the Tribunal has jurisdiction to made the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or (b) a review of a reviewable decision. (2) Without limiting subsection (1), the following decisions are also appealable decisions: (a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or (b) an order of the Tribunal under section 71(2) that the parties to proceedings before it may not be represented by an agent of a particular class, or (c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal. (3) A decision of an Appeal Panel (including any such decision made in relation to an external appeal) is not an appealable decision for the purposes of this Part. 12The Appeal Panel considered the meaning of an "appealable decision" in the context of a reviewable decision in AF v HealthQuest (GD) [2009] NSWADTAP 42 at [101]: 101 It is clear from the terms of section 112(2) and from relevant case law (see for example Lloyd v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68 at [23]; Sullivan v ADT [2000] NSWSC 386 at [4]) that interlocutory as well as final decisions may be 'appealable decisions'. 13The statement to which Mr Beer has objected is neither an interlocutory nor a final decision. It is merely a finding of fact. As Mr Beer's appeal does not relate to an "appealable decision", the appeal on this ground is dismissed. 14Even if Mr Beer's appeal is in relation to an 'appealable decision' we refuse his application for leave for the appeal to extend to the merits of the Tribunal's decision. Mr Beer agreed that the Tribunal's finding in relation to his belief that he was under surveillance had no bearing on the Tribunal's final decision. That decision affirmed the decision of the Commissioner of Police that he did not 'hold' the documents Mr Beer had requested. 15Section 87 of the ADT Act provided that the Tribunal may correct an "obvious error in the text of the decision". The reference to Mr Beer's belief that he was under surveillance is not an "obvious error" of the kind contemplated in that provision.

Reference to nature of alleged offence 16The second ground of appeal in relation to the substantive decision was that the Tribunal mentioned in its reasons at [1], the kind of offence about which Mr Beer said he had been interviewed by two police officers in 1972. Mr Beer objected to the inclusion of this reference firstly because he had been under the age of 18 at the time and secondly because he disclosed this information at what he understood to be a "preliminary conference." The Tribunal is prevented by s 74(4)(a) of the ADT Act from taking into account any "words spoken or acts done at a conference" at such a conference unless the parties agree. 17The kind of offence about which Mr Beer said he had been interviewed is a factual finding, not an "appealable decision". Mr Beer does not challenge the Tribunal's decision affirming the decision of the Commissioner of Police that the NSW Police Force did not hold the documents he had requested. On that basis this ground of appeal fails. 18If that is not correct, and Mr Beer has appealed against an "appealable decision" we will address Mr Beer's first point (that he was under 18 years of age at the time) when considering his grounds of appeal with respect to the Tribunal's refusal to anonymise his name in the reasons for decision. 19As to his second point (taking into something said at a preliminary conference) s 74 of the ADT Act is irrelevant because a planning meeting is not a preliminary conference. A planning meeting is described in the Guideline applicable at the time (Reviews Under the Government information (Public Access) Act: Guideline) as giving the parties an opportunity to: (a) explore any possibilities for resolution of the dispute (b) assess the complexity of applications (d) assist the parties by determining future procedures. 20The Guideline refers to the option of a "formal preliminary conference under s 74 of the ADT Act" following a planning meeting. In McGuirk v Vice-Chancellor, University of New South Wales [2009] NSWADTAP 43 at [45] to [55] the Tribunal concluded that a planning meeting is not a preliminary conference under s 74. We agree with and adopt the reasoning and conclusion in that case. 21If that conclusion is incorrect, the nature of the alleged offence was in evidence before the Tribunal from another source. Mr Beer disclosed the nature of the allegation to the NSW Police Force in his application for access to the documents he sought. The Information Commissioner also referred to Mr Beer's application for documents and identified the nature of the alleged offence in her report dated 2 November 2012. This document was in evidence before the Tribunal and the Appeal Panel. Consequently, whether or not Mr Beer disclosed the information in a planning meeting or preliminary conference, that information was in evidence. The Tribunal is entitled to have regard to material before it including any relevant factual material: ADT Act, s 63. 22We agree with Mr Beer that the Tribunal could have chosen not to include information about the nature of the alleged offence in its reasons for decision. But doing so does not constitute an error of law.

Appeal against anonymisation decision 23On 30 May 2013, after the Tribunal had reserved its decision, Mr Beer applied for the decision to be anonymised. In that letter, Mr Beer said: I am writing to request that the Tribunal anonymise the publication of its judgement in the above case. The matters to which my Access Application and appeal relate were raised in 1972 when I was only 16 years of age . . . As the matter relates to an allegation raised when I was a juvenile I understand that it is appropriate that the Tribunal anonymise the final reporting of its judgement. 24The general rule is that proceedings before the Tribunal are to be determined by holding a hearing that is open to the public: ADT Act s75(1). The Tribunal has discretion, if it is satisfied that "it is desirable to do so" to prohibit the disclosure of the name of a party: s 75(2)(b). (1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person 25In response to Mr Beer's submission, the Tribunal concluded that: Mr Beer sought to characterise his application as one concerning his conduct when a child and sought to rely on the recognised need to protect the identity of children in proceedings . . That public interest does not, in my opinion, extend so as to require the protection, in proceedings under the GIPA Act, some forty plus years after the events in issue, of the identity of an individual who was then a child and who was questioned, but never the subject of adverse action, about an offence. 26As an aside, Mr Beer contended that these paragraphs infer that he was deceitful or lying to the Tribunal because the Tribunal used the words, "sought to characterise". That is not our understanding of those words. 27We refused Mr Beer's informal application at the end of the hearing to further amend his grounds of appeal to claim that these paragraphs in the Tribunal's decision demonstrate actual or apprehended bias on the part of the Judicial Member. Mr Beer was given an adequate opportunity to formulate his grounds of appeal and it would have been procedurally unfair to allow him to amend those grounds orally at the end of the hearing. 28Alternatively, Mr Beer submitted that s 15A of the Children (Criminal Proceedings) Act 1987 makes it an offence for the Tribunal to identify him by name in these proceedings. Section 15A states that: 15A Publishing and broadcasting of names prohibited (1) The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if: (a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or The name of a person 29Because Mr Beer was not represented by a lawyer, and the anonymisation decision was made 'on the papers' under s 76 of the ADT Act, we allowed him to re-open his case so that he could submit that this provision prohibited the publication of his name. 30Contrary to Mr Beer's submission, s 15A does not apply to proceedings in the Tribunal. Under s 4(a), Part 2 of the Children (Criminal Proceedings) Act (which includes s 15A) applies to "any court that exercises criminal jurisdiction". The Tribunal does not exercise criminal jurisdiction. Even if it did, being questioned by police officers about the possible commission of an offence is not "criminal proceedings" within the meaning of that term in s 15A of the Children (Criminal Proceedings) Act. 31Finally, Mr Beer submitted that when determining whether to anonymise his name under s 75(2)(b) of the ADT Act, the Tribunal failed to take into account the public policy considerations reflected in the Children (Criminal Proceedings) Act 1987, s 15A. 32It is a fundamental principle of law that in exercising discretionary power, a decision maker must take into account relevant considerations and must not take into account irrelevant considerations. The leading Australian case in this area is Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25. The principles as set out by Mason J at 39 that are applicable in this case include that the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision. 33Because any policy considerations under the Children (Criminal Proceedings) Act are not matters that the Tribunal was bound to take into account when considering an application under s 75(2)(b), the Tribunal has not made an error of law.

Orders (1)The appeal against the Tribunal's decision in Beer v Commissioner of Police NSW Police Force [2013] NSWADT 243 is dismissed. (2)The appeal against the Tribunal's decision in Beer v Commissioner of Police, NSW Police Force [2014] NSWCATAD 23 is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2014

Administrative Decisions Tribunal Act 1997(NSW)

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