The Tribunal considered the conflicting public interests in not disclosing the identity of police informants and the public interest in the proper administration of justice.

Held, finding that the redacted material is the subject of public interest immunity:

• From the context of the redacted passage in the document and from the affidavit evidence, the Tribunal is satisfied that the redacted passage contains comments from a police informant.
• The comments made by the informant comprised of allegations of criminal conduct against the applicant and his brother in circumstances that imply the confidentiality of those communications.
• The redacted material is the subject of public interest immunity because it would identify or tend to identify a police informant.
• The public interest in the administration of justice does not require the disclosure of the redacted material.

Administrative Review - Firearms Act 2015 - Review of a decision of the Registrar of Firearm to cancel a license, permit or registration

Administrative tribunals - Procedure - Statutory powers - Evidentiary powers - Power to require person to give evidence or to produce evidentiary material - Public interest immunity

South Australian Civil and Administrative Tribunal Act 2013 ss 35, 43

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

Adelaide Brighton Cement v South Australia [1999] SASC 379; (1999) 75 SASR 209

Medical Board of South Australia v Fisher [2000] SASC 92; (2000) 76 SASR 242

Rogers v Secretary of State for the Home Department [1972] 2 All ER 1057

Makanjuola v Commissioner of Police [1992] 3 All ER 617

Victoria v Seal Rocks Victoria (Australia) Pty Ltd (2001) 3 VR 1

D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1977] 1 All ER 589

Cain v Glass (No 2) (1985) 3 NSWLR 230

Attorney-General for NSW v Stuart (1994) 34 NSWLR 667

R v Mason [2000] SASC 161

Haydon v Magistrates Court and Rofe [2001] SASC 65

R v Mason [2000] SASC 161

Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404

Preliminary decision - Adjournment for further directions

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 43(2)

1. This decision concerns a preliminary point in these proceedings, namely whether the Registrar of Firearms (who is also the Commissioner of Police) should disclose to Mr Collins redacted material in Document 3 ("Street Check Report") of the Book of Documents filed by the Registrar under s 35 of the South Australian Civil and Administrative Tribunal Act 2013.

2. It is agreed that the material that Mr Collins seeks, and that the Commissioner of Police opposes disclosing, is essentially the identity of the person who is referred to in the redactions as making allegations of methamphetamine use by Mr Collins and his brother Ronald Collins.

3. The Commissioner asserts that the redacted material is subject to public interest immunity as its disclosure would identify or tend to identify a police informant and therefore it should not be disclosed to Mr Collins. Mr Abbott asserts that it is not subject to public interest immunity and that, even if it were, the balance of considerations and the interests of justice favours the release of the information to Mr Collins.

4. To be clear, I have not seen an unredacted copy of the Street Check Report.

5. The Registrar's delegate cancelled Mr Collins's firearms licence on 25 June 2021 because Mr Collins did not provide the Registrar with a medical report and toxicology analysis within the 48-hour timeframe stipulated by the Registrar at the time Mr Collins's licence was earlier suspended. This is the decision presently under review in the Tribunal.

6. The delegate also said in the notice of cancellation that "the incident dated 22 April 2019 ... is of serious concern to me, as is your association with Gavin Merritt".

7. The incident of 22 April 2019 referred to by the delegate is when police attended at a property in Andamooka after receiving a report of trespassers from Mr Collins and his brother.

8. The Street Check Report appears to be a form filled out by police to record details relating to the attendance at the Andamooka property on 22 April 2019 following the report of trespassing. It contains information about the address of the property, identifying details of "Involved Person(s)", and a "Summary".

9. The redactions in issue are not the only redactions made to the Street Check Report. The other redactions are not in dispute and so are not addressed further in this decision.

10. The first redaction to the Street Check Report that the Commissioner says is subject to public interest immunity is a block of information at the bottom of the first page. This block sits under two similar blocks of information that contain identifying and other details of Mr Collins and his brother. All three blocks of information are under the heading "Involved Person(s)". The block of information relating to the third person has the answers to "Name", "DOB", "SPI", "Classification", "Address", "Cautions" and "Flags" blacked out. Mr Abbott told the Tribunal that Mr Collins seeks only the name of the individual referred to in that redacted block and none of the other information.

11. The second redaction is to the information under the "Summary" heading on the second page of the Street Check Report. This passage states:

At about 0900 hrs Monday 22nd April 2019, RP Ronald COLLINS called police in relation to 2 people being located in a shed at lot 20 Boundary Rider Road, ANDAMOOKA and had been locked inside. Police attended, searching inside the shed however no persons were located within. The shed had been locked and watched by COLLINS and his brother Andrew COLLINS. Andrew stated he had heard people inside and speaking on the phone. Andrew stated he had been chasing 2 people for 3 days around Andamooka who had been breaking into peoples houses but no reports of any SCT's have occurred. [REDACTED] stated [REDACTED], that both COLLINS' use methamphetamine, and were imaging things as he had been there since 0700 hrs and nothing had been heard/seen. Inside the shed is crammed of property, cobwebs, and dirt which all was undisturbed. Andrew was adamant these 2 people were inside and was making some off statements about his house being broken into and not sleeping for 3 days. Andrew stated "they're crafty, they walk straight past you inside your own house and you don't see them". [REDACTED] likely drug induced hallucinations.

12. Ms Redden told the Tribunal that the version of the Street Check Report before the delegate contained fewer redactions than those for which public interest immunity is now claimed. She said also that public interest immunity is no longer claimed over the words "likely drug induced hallucinations".

13. Mr Abbott said that Mr Collins seeks all the material redacted from the above passage.

14. Production of an otherwise relevant and admissible document will not be ordered by the Tribunal if the Tribunal finds that it would be injurious to the public interest to disclose it and there is no greater countervailing consideration in the interests of justice in favour of its disclosure.[1]

15. Public interest immunity is a duty, not a privilege, and cannot be the subject of waiver, consent or acquiescence.[2]

16. It is well settled in UK and Australian authorities that information regarding police informants may be subject to public interest immunity.[3] This is in order to prevent sources of information drying up and police being hindered in their duty of preventing and detecting crime.[4] It is clear from the authorities that the underlying policy of the law is the protection of the broader public interest in the continuing flow of information to the police, not only the protection of individual informants.

17. There is no particular form or formality by which information by a police informant is communicated to police,[5] but confidentiality is an important element.[6]

18. The public interest against disclosure of police informants is given great weight and strong arguments in favour of disclosure would have to be made out.[7] It would appear from the authorities that disclosure of the identity of a police informant in criminal cases would have to be of substantial assistance to the accused, not merely of some assistance.[8]

19. The present case is, of course, not a criminal case concerning the rights and liberty of the individual but a review of a Government decision as to whether Mr Collins is entitled to the privilege of holding a firearms licence. No authorities were cited to the Tribunal as to the applicable threshold to be adopted in the balancing exercise in these cases, but I consider the Tribunal is entitled to conclude that Mr Collins would need to demonstrate at least that the disclosure of the redacted information would be of substantial assistance to him in his review application.

20. The Commissioner asserts that it would be contrary to the public interest to produce the unredacted version of the Street Check Report as it would likely identify a human source(s).

21. Ms Redden submitted that as a preliminary issue, the Tribunal must be satisfied that the person referred to in the redactions is a police informant.

22. I told the parties at the preliminary hearing that I was satisfied that the person was an informant and I now give my reasons for that finding.

23. In making my finding, I took into account the contents of the Street Check Report, as redacted in the Book of Documents, and of a confidential affidavit affirmed by Inspector Melissa Gilchrist on 20 September 2021. I am satisfied that it was appropriate for the Tribunal to take the affidavit into account albeit that, because of its confidential nature, it could not be disclosed to Mr Abbott. Also, due to the limited scope of the redactions, I did not consider it necessary to view the unredacted version of the Street Check Report as there was sufficient material already before me to satisfy me that the individual was a police informant.

24. I am satisfied on the balance of probabilities from the context of the redacted passage in the "Summary" and from the affidavit of Inspector Gilchrist that the person who made the comments about methamphetamine use contained in that passage is an informant. I am satisfied that the person is making allegations of criminal conduct against Mr Collins and his brother and that the person is doing so in circumstances that imply the confidential communication to police of those allegations. I am satisfied from the authorities that these features (allegations of criminality and confidentiality) are at the heart of the question of whether a person is an informant.

25. The inference of confidentiality is supported by the conclusion that is reasonably open to me that these comments were said to the police outside the hearing of Mr Collins and his brother. If Mr Collins or his brother had heard the things being said to police, they would know who said those things and this request for disclosure would not have been made.

26. Mr Abbott's submissions were that the person was merely a witness at the scene making a statement to police or was speaking flippantly, without any concern for discretion or confidentiality, or that the person was expressing only an opinion. For the reasons already expressed, I do not accept those submissions.

27. To be clear, I am only concluding that the person is an informant. I am not making any finding as to the content of what was said by the informant or the veracity or lack of veracity of what was said by the informant.

28. I am therefore satisfied that the redacted material is the subject of public interest immunity because it would identify or tend to identify a police informant. I am also satisfied that the affidavit is the subject of public interest immunity for the same reason.

29. Mr Abbott submitted that the information in the redacted material is at the genesis of the allegations of drug use made against Mr Collins and that the Registrar relied on that information to take action which ultimately led to the cancellation of Mr Collins's firearms licence. Mr Abbott told the Tribunal that Mr Collins would propose to challenge the credibility of the police informant at the full hearing of this matter.

30. In this case, two conflicting public interests have been identified: the public interest in not disclosing the identity of police informants and the public interest in the proper administration of justice. A balancing exercise is necessary to decide which predominates in this instance.[9]

31. For the following reasons, I am not satisfied that the public interest in the administration of justice requires the disclosure to Mr Collins of the information that is subject to public interest immunity:

1. Mr Abbott's Outline of Argument contains speculation as to the identity of the police informant and I am satisfied that Mr Collins already has a high degree of confidence as to who he believes the informant to be. In fact, Mr Abbott's Outline is clear that Mr Collins is only seeking confirmation of Mr Collins's suspicions as to the identity of the person. I am not satisfied that the desire to have confirmation of a conclusion reached with a high degree of confidence is a substantial enough reason to override the general public interest in maintaining the confidentiality of information subject to public interest immunity.
2. It would be open to the parties to submit to the Tribunal that the Tribunal should place little weight at the full hearing of this matter on the unsubstantiated and uncorroborated assertions of an anonymous informant, and I note that Ms Redden quite properly conceded the compromised nature of this evidence.
3. Mr Abbott's Outline indicates that Mr Collins has an explanation of his significant weight loss in rebuttal of the allegations of drug taking and may have other evidence to rebut the allegations. It would appear that a challenge to the credibility of an uncorroborated witness is not likely to be a critical plank of Mr Collins's case at the full hearing.

32. I conclude that, of the competing public interests, the public interest in preventing from disclosure the identity of a police informant predominates in this case.

33. The matter will now be listed for a further directions hearing.

34. The content relating to the third "Involved Person" and the content under the heading "Summary" that is redacted from Document 3 ("Street Check Report") of the s 35 Book of Documents filed on 23 July 2021 by the respondent is immune from disclosure by reason of public interest immunity.

35. The affidavit of Inspector Melissa Gilchrist is immune from disclosure by reason of public interest immunity.

36. The Tribunal adjourns this matter for a further directions hearing on a date to be determined.

[1] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; Adelaide Brighton Cement v South Australia [1999] SASC 379; (1999) 75 SASR 209; Medical Board of South Australia v Fisher [2000] SASC 92; (2000) 76 SASR 242.

[2] Rogers v Secretary of State for the Home Department [1972] 2 All ER 1057 at 1070; Makanjuola v Commissioner of Police [1992] 3 All ER 617; Victoria v Seal Rocks Victoria (Australia) Pty Ltd (2001) 3 VR 1 at [16] - [19].

[3] Rogers v Secretary of State for the Home Department [1972] 2 All ER 1057; D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1977] 1 All ER 589; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 61; Cain v Glass (No 2) (1985) 3 NSWLR 230; Attorney-General for NSW v Stuart (1994) 34 NSWLR 667; R v Mason [2000] SASC 161; Haydon v Magistrates Court and Rofe [2001] SASC 65.

[4] D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1977] 1 All ER 589 at 595 per Lord Diplock.

[5] R v Mason [2000] SASC 161 at [23] - [25].

[6] R v Mason [2000] SASC 161 at [26] - [35].

[7] Haydon v Magistrates Court and Rofe [2001] SASC 65 at [115]; R v McKelliff (2004) 878 SASR 476.

[8] R v Mason [2000] SASC 161; Haydon v Magistrates Court and Rofe [2001] SASC 65; R v McKelliff (2004) 878 SASR 476.

[9] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 412 per Gibbs CJ; Haydon v Magistrates Court and Rofe [2001] SASC 65; R v McKelliff (2004) 878 SASR 476.