Bettington v Commissioner of Police

Relevant legislation

1. Section 58 of the ADR Act obliges the Respondent to file, amongst other things, a copy of every document that is in the possession or under its control, that it considers relevant to the determination of the application by the Tribunal.
2. There is express provision, in the FA Act for evidence to be withheld from an Applicant and from the public. Section 75(5)(a) of the FA Act provides that the Tribunal "is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in s 11(5A) or 29(3A)." Section 75(5)(b) provides that, "in order to prevent the disclosure of any such report or other information," the Tribunal "is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative." The Respondent, however, did not rely upon s 75(5) of the FA Act in respect of the present application; instead, it relied upon ss 49(2) and 64(1) of the CAT Act.
3. Section 49 of the CAT Act provides for the holding of confidential hearings: 49 Hearings to be open to public (1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it 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. …
4. Confidentiality orders relating to evidence and proceedings are regulated by s 64 of the CAT Act, which relevantly provides: 64 Tribunal may restrict disclosures concerning proceedings (1) 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 prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. …
5. Section 59 of the ADR Act gives the Tribunal the power to direct that an administrator not be required to lodge certain documents as would otherwise be required by s 58 of that Act: 59 Objections to lodgement (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58. (2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if: (a) … or (b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.

The evidence

1. In support of the Application in these preliminary proceedings, the Commissioner relied on the affidavit of Senior Constable David Bates, sworn on 17 November 2020. SC Bates has been a police officer for 14 years and currently works as a Crime Prevention Officer in the South Coast Police District. SC Bates gave evidence in open session and was cross-examined on behalf of the Applicant. He also provided a confidential affidavit and gave evidence in closed session, in which I also asked him questions.
2. SC Bates wrote in his open affidavit that the Computerised Operational Policing System (COPS), is an electronic database that was introduced by the NSWPF in 1994 as a record-keeping system to capture, record and store operational information and intelligence on an organisation-wide basis. It provides a means by which NSWPF officers record and enquire on the details of persons, organisations, locations, objects, property and vehicles that are of interest to Police. When an officer enters information into COPS relating to an event, person, property, vehicle, object or organisation, the COPS system allocates a COPS event number to that entry. COPS is made up of a number of sub-databases, including the Intelligence sub-database which is used to create, update and enquire on all information that is specifically linked to an Information Report. The creation of an Information Report is the other avenue by which information is entered into COPS. An Information Report is the method by which information that is, or could be, of interest to Police is recorded. This information can be derived from one or a number of different types of sources; it could be based on something that was observed or that was reported by a member of the public. When an officer enters information into COPS, the system allocates a unique number to that Information Report. Once on the COPS database, the information on COPS is used to identify, assess and evaluate the law enforcement environment.
3. SC Bates said that he had reviewed the Confidential Material and, based on his experience and awareness of the Applicant's history and association, he considered that, given the content of the Confidential Material, disclosure of any of the Confidential Material would or could: 1. prejudice current and future investigations into criminal activity; 2. identify confidential sources of information to law enforcement; 3. place identified persons at risk of harm; 4. expose police methodology; and/or 5. reveal confidential methods of investigation.
4. He wrote that, within the Police, the Confidential Material is only accessible by law enforcement personnel with clearance to access the material. The information in the Confidential Material has been collated and maintained by the NSWPF and other law enforcement agencies to assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct. It is necessary that such intelligence holdings remain confidential and not known to those who are subject to such intelligence holdings.
5. Disclosure of the Confidential Material, SC Bates said, would allow a picture to emerge showing what matters are known to the NSWPF about the activities of the persons of interest known to Police and from which inferences could be drawn by the Applicant and others as to what matters are therefore not known to the NSWPF. While it is possible that the Applicant may suspect or know some of the information held by the NSWPF, disclosure of the Confidential Material may confirm any such suspicions.
6. He further wrote that law enforcement agencies rely heavily on assistance from persons who provide confidential sources of information, including registered sources and informants. Such confidential information is widely regarded as an important and useful form of intelligence. If the identity of any individuals providing confidential assistance is disclosed, or such individuals were suspected (rightly or wrongly) of being confidential sources of any information in the Confidential Material, they may be subjected to acts of retribution. Further, those who may otherwise have supplied information to the NSWPF may, in the future, be deterred from doing so.
7. He considered there is a risk that persons, against whose interest a confidential source of information has acted, have a motive to carry out, or to procure, reprisals against the individual who provided the information contained in the Confidential Material. Further, sources of criminal intelligence are regarded with antipathy generally and some people are willing to harm sources for no reason other than that they are sources, or are at least less inhibited when considering harming a person if that person is a source. The physical security, safety and protection of an informant are of paramount concern to the NSWPF, and therefore the NSWPF is committed to ensuring and maintaining the security and protection of all informants.
8. SC Bates said that in court proceedings, the Confidential Material would be subject to claims of public interest immunity to prevent their disclosure and use.
9. SC Bates agreed in cross examination that Mrs Bettington had held a firearms licence for many years and was an upstanding member of the local community as a nurse and a farmer's wife. It was submitted that her husband is a farmer and is unwell and she requires access to firearms to keep feral animals at bay.
10. It was submitted on the Applicant's behalf that the open access principles be construed strictly. In any event, it was submitted, it was open to the Tribunal to make confidentiality orders that would limit access to the Confidential Material to counsel appearing on the day of the substantive hearing.
11. The Respondent also relied on SC Bate's confidential affidavit and evidence given in a confidential hearing. I do not propose to discuss any material that was presented on a confidential basis in open Reasons. Those parts of the Reasons that are not to be disclosed are identified as "[Not for publication]': s 64 of CAT Act.
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]
15. [NOT FOR PUBLICATION]
16. [NOT FOR PUBLICATION]
17. [NOT FOR PUBLICATION]

Consideration

1. Section 49(1) of the CAT Act makes it clear that the normal rule is that the Tribunal's hearings are to be open to the public, which necessarily includes all parties to the proceedings. Similarly, in reaching its decision, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) CAT Act. However, s 64(1)(d) CAT Act provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." The word "desirable" is to be interpreted with regard to the basic common law precept of open justice: see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) at [61].
2. It was submitted on the Applicant's behalf, correctly in my view, that the Tribunal should be mindful of the discretionary nature of s 64 of the CAT Act and that the question for the Tribunal is whether the circumstances are sufficient for the exercise of its discretion. The provisions of s 64 itself do not provide guidance as to how that discretion should be exercised. There are fundamental principles of open justice and procedural fairness: see for example Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66, citing Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. In Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [26], the Tribunal stated that the starting point in deciding whether an order under s 64(1) of the CAT Act should be made is the presumption set out in s 49 that proceedings are to be conducted in public, so that, in accordance with the rules of procedural fairness, a party knows the case it has to meet.
3. In its consideration of whether to make an order under s 59 of the ADR Act or s 64 of the CAT Act, the Tribunal must turn its mind to whether it would be appropriate to make an order prohibiting disclosure of the documents because of "the confidential nature" of those documents or, more broadly, "for any other reason": see Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41 at [3]. That provision implicitly permits a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant) at [24].
4. The principles relevant to making confidentiality orders of the type sought by the Commissioner were recently summarised recently by the Tribunal in Grant at [18]-[20]: 18. Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that "[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise" (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, "the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing" (CYL v YZA [2017] NSWCATAP 105 at [94]). 19. The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (NCAT Act, s 38(2)). Section 64(1) (d) provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." The word "desirable " should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)). 20. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d): Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.
5. In CYL v YZA [2017] NSWCATAP 105 (CYL v YZA) which was referred to in Grant, the Appeal Panel, at [102], held that the Tribunal's power to make suppression orders is less constrained than the position at common law. The Appeal Panel adopted the reasoning in Dezfouli (which had examined comparable provisions in the Administrative Decisions Tribunal Act 1977). In Dezfouli, the Appeal Panel stated as follows at [50]-[53] and [81]-[82]: 50. Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT [Administrative Appeals Tribunal] Act), three elements of prime importance are the word 'desirable', the phrase for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any ... reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion. 51. There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is 'really necessary to secure the proper administration of justice in proceedings before it'. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act. 52. In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person - most commonly a witness - involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym. 53 In such cases, the courts have applied a criterion of 'necessity', such as that stated by McHugh J A. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally - i.e., in future proceedings as well as in the proceedings currently being heard. … 81. It is difficult if not impossible to set out in short form all the matters that, according to the case law ..., should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an Applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 82. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.
6. I consider that SC Bates's evidence is sufficient to satisfy me that the circumstances at hand are sufficiently "special" so as to justify the making of confidentiality orders sought by the Commissioner.
7. Firstly, I agree that disclosure of the Confidential Material, may allow a picture to emerge as to what is known by Police about the activities of persons of interest and from which inferences could be drawn by the Applicant and others as to what matters are therefore not known to Police. Even if the Applicant may suspect or know some of the information held by Police, disclosure of the Confidential Material may confirm any such suspicions.
8. Secondly, there can be no doubt that there is a significant public interest in protecting the confidentiality of Police sources and not disclosing information concerning informants: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270, at [69]. I would have been loathe to make this open observation in the context of this matter, had SC Bates not raised the issue of COPS reports in his open affidavit.
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. I observe that s 58(1)(b) of the ADR Act requires the decision-maker to file with the Tribunal the material it considers to be relevant to the determination of the application by the Tribunal (my emphasis). The weight to be attached to the Confidential Material will be for determination in the substantive matter.
13. SC Bates deposed in his affidavit that the Confidential Material would be subject to claims of public interest immunity to prevent its disclosure and use. I accept that, generally, information that reveals the identity of a confidential informant is immune from production: Cain v Glass (No 2) (1985) 3 NSWLR 230, at 247-248 and Sankey v Whitlam (1978) 142 CLR 1 at 61. Moreover, public interest immunity extends to the protection of confidentiality of police methodology: McCausland v State of NSW [2010] NSWSC 1562 at [20].
14. I have considered whether the Confidential Material could be redacted, or made available on to the Applicant's counsel. I do not consider such a course appropriate in the circumstances.

Conclusion

1. SC Bates' evidence and the Respondent's submissions make a cogent case for the grant of confidentiality and I will make the Orders, virtually as asked. Exclusion of the Applicant, her legal advisers and the public in the substantive hearing is to be restricted to that part of the hearing in respect of the Confidential Material, and not to the entirety of the hearing. I did not understand the Respondent to be seeking to have the entire substantive hearing conducted on a confidential basis or that all of its evidence was to be excluded from the Applicant, and the Orders sought have been adjusted accordingly.

Orders 1. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the Applicant, the legal representative for the Applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Affidavit; 2. Pursuant to s 59 of the ADR Act, the Respondent not be required to lodge copies of the documents or parts of documents (the Confidential Material) specified in the confidential affidavit in support of the application and provided to the Tribunal in accordance with the Orders of the Tribunal (the Confidential Affidavit); 3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and the Confidential Affidavit, or matters contained in the Confidential Material and the Confidential Affidavit is prohibited; 4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and the Confidential Affidavit, or matters contained in the Confidential Material or Confidential Affidavit it is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal. 5. In addition to the Orders set out above, pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the transcript and recording of the confidential hearing in these preliminary proceedings and the contents of all paragraphs in these Reasons marked "[Not for publication]" are not to be published or released to the Applicant or the public.

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: 10 December 2020