Burn v Commissioner of Police

Relevant legislation

1. 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. …
2. Section 58 of the ADR Act obliges the Respondent to file and serve, 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. Section 59 of the ADR Act however 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.
3. There is express provision, in the FA Act, however, 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.
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: … (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. …

The evidence

1. In support of the Application in these preliminary proceedings, the Commissioner relied on the statement of Acting Senior Sergeant Kylie Owen (A/S/Sgt Owen) dated 29 April 2022 (Open Statement); and her confidential statement of the same date which was provided to the Tribunal on a confidential basis (Confidential Statement).
2. The Applicant's submissions in relation to these preliminary proceedings referred to "allegations/hearsay/smears/informant reports/unnamed witnesses/all matters of Confidential Material/and confidential statements". She expressed concern as to why the "ordinary and orthodox rule" that the Tribunal proceedings are in public" should not be applied. She referred to an error in A/S/Sgt Owen's Open Statement in which she had referred to the Applicant in one paragraph as "he", and submitted that A/S/Sgt Owen, a person of 18 years experience as a Police officer, had clearly regarded Mr Xenos, who had previously sought to represent the Applicant as the actual Applicant. The Respondent submitted, and I agree, that it appears to have been a typographical error, as was clear when the document was read as a whole.
3. The Applicant submitted that she was being subject to "guilt by association", and was being denied procedural fairness. She said she was not going to "go after witnesses" and, as she had no criminal record, how could there be "criminal issues against her character".
4. A/S/Sgt Owen is currently attached to Compliance and Enforcement with the Firearms Registry. Prior to that role she spent over 10 years as a Criminal Investigator attached to the Organised Crime Squad, State Crime Command.
5. Based on her experience, and after reviewing the Confidential Documents her evidence was to the effect that disclosure of the Confidential Material could or would: 1. alert the Applicant to information that Police have gathered and consequently prejudice current and future investigations and enquiries; 2. encourage those involved in criminal activities to adjust their behaviours to avoid police detection; 3. identify confidential sources of information to law enforcement; 4. place identified persons at risk or harm; 5. prejudice the ongoing provision of confidential information to the Police; 6. reveal sensitive personal information in relation to third parties; 7. expose police methodology and intelligence gathering techniques.
6. Further, her evidence was that the information in the Confidential Material had been collated and maintained by the Police and other law enforcement agencies to assist in the monitoring and investigation of criminal activity and persons who participate in unlawful conduct. Such is the confidential and sensitive nature of the Confidential Material that, even within the Police, they are only accessible by select law enforcement personnel who have the requisite clearance. Any disclosure of the Confidential Material would allow a picture to emerge showing what matters are known to Police about the activities of the Applicant or other persons of interest to Police. Disclosure could also result in inferences being drawn as to what matters are therefore not known to the Police.
7. In relation to confidential sources of information A/S/Sgt Owen's evidence was that Police rely heavily on assistance from persons who provide confidential information, including informants. Such confidential information is an important 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. There is a risk that persons, against whose interests an informant has acted, would carry out reprisals against the individual who provided, or is suspected to have provided, any of the information included in the Confidential Material. Further, those who may otherwise have supplied information to Police or other law enforcement agencies may, in the future, be deterred from doing so; that would have a detrimental effect on the carrying out of law enforcement and investigations into criminal activities.
8. The Confidential Material, included, A/S/Sgt Owen outlined, "personal information" within the meaning of the Privacy and Personal Information Protection Act 1998 and also "health information" within the meaning of the Health Records and Information Privacy Act 2002.
9. She also considered the Confidential Material may properly be subject to a claim for public interest immunity.
10. I do not propose to discuss any material that was presented by the Respondent on a confidential basis in open Reasons nor the oral submissions made in elaboration of the Respondent's position. Those parts of the Reasons that are not to be disclosed are identified as "[NOT FOR PUBLICATION]': s 64 of CAT Act.
11. [NOT FOR PUBLICATION].
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]
15. [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. 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." "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. The Tribunal is to 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 in circumstances where s 64 itself does 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. However, 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]. Any resultant denial of procedural fairness that would arise from the making of orders under s 64(1) of the CAT Act is not reason to avoid making such orders; that provision implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant) at [24].
4. I was referred to Brennan v State of New South Wales [2006] NSWSC 167 (Brennan) where Hall J referred to the principles set out in R v Mentuck (2001) 3 SCR 442, a decision of the Supreme Court of Canada. His Honour held at [51]-[52]: 51. The issue in the present case ... is the public interest in the non-disclosure of certain information in relation to specialised investigation methodology employed by police. The open justice principle is to be balanced against that interest. 52. It is necessary in determining the issue to consider the evidence as to whether disclosure would be injurious to the public interest: ... In that respect it is relevant to have regard to: (a) the confidential affidavits in support of the claim and the grounds and reasons disclosed therein; (b) the nature of the evidence and the submissions and the contents of the relevant documents in order to determine their significance having regard to the generality or specificity of the content of the evidence, submissions or other material in determining whether disclosure would be injurious to the public interest; (c) whether the information or material is relevant to ongoing or specific future investigations; (d) whether the nature of the information or material discloses methodology, strategies or procedures in terms of detail that is not usually disclosed by evidence given in the course of criminal trials.
5. The principles relevant to making confidentiality orders of the type sought by the Commissioner were summarised 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.
6. 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.
7. I consider that A/S/Sgt Owens' 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, for the following reasons.
8. Firstly, there is significant public interest in protecting police investigative techniques: see for example Brennan at [44]. There is a public interest in restricting the publication of detailed information concerning Police methodology. As I have said on many previous occasions, including in Zreika v Commissioner of Police [2020] NSWCATAD 202 (Zreika), to which I was referred, in relation to actual Police methodologies, the process is akin to a large jigsaw puzzle. Disclosure of what is known by Police in assembling that "jigsaw" may lead to a disclosure of what is not known (or "the missing pieces" to continue the analogy), with the consequence that those engaged in criminal activities (or their associates) might adjust their behaviour to avoid Police detection. I must consider whether the particular documents will disclose information that will have a real, not fanciful, effect on Police operations, whether there may be current operations or not. I am satisfied that disclosure of the Confidential Material before me would be likely to have a real effect on Police operations. See discussion in Zreika.
9. [NOT FOR PUBLICATION]
10. 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].
11. [NOT FOR PUBLICATION]
12. Thirdly, as can be observed from the redacted material supplied in the s 58 documents, some of the information relates to the personal information of third parties.
13. [NOT FOR PUBLICATION]
14. A/S/Sergeant Owens deposed that the sensitive and confidential nature of the information in the Confidential Material would lead the Commissioner to make a claim of public interest immunity over those documents. 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].

Conclusion

1. A/S/Sgt Owen's evidence and the Respondent's submissions make a cogent case for the grant of confidentiality and I will make the Orders, virtually as asked. Confidentiality must only be restricted to that part of the hearing or that part of the evidence for which it is necessary in the interests of justice and not to the entirety of the hearing or the material relied on. Having said that, 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 CAT Act, the hearing of the Application in the substantive matter insofar as it relates to the Confidential Documents described in the Confidential Affidavit be conducted in the absence of the Applicant, the legal representative for the Applicant (if any), and the public (Private Hearing); 2. Pursuant to s 59 of the ADR Act, the Commissioner is not required to lodge copies of the Confidential Documents described in the Confidential Affidavit; 3. Pursuant to s 64(1)(c) of the CAT Act, the publication of 1. any evidence given during the Private Hearing, 2. the Confidential Documents and the Confidential Affidavit and 3. matters contained in the Confidential Documents and the Confidential Affidavit, is prohibited; 1. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of 1. any evidence given during the Private Hearing, 2. the Confidential Documents and the Confidential Affidavit and 3. matters contained in the Confidential Documents and the Confidential Affidavit, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal;
1. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and reporting of the hearing of this Application, including any evidence given during the confidential hearing part of the hearing, is prohibited.

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

Amendments 16 June 2022 - Typographical error in [38] corrected - "Cconfidentiality amended to "Confidentiality" Typographical error in Representation corrected - "McCulloch" amended to "McCullough" 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: 16 June 2022