ECN v Commissioner of Police

Material filed on appeal

1. The appellant filed an amended grounds of appeal received on 20 August 2020 which was responded to by a reply to appeal received on 4 September 2020. The appellant filed submissions received on 2 October 2020 which contained further amended grounds of appeal.
2. The parties at the hearing of the appeal confirmed that the grounds of appeal were to be taken to be the further grounds of appeal propounded in the submissions of the appellant received on 2 October 2020.
3. The respondent filed submissions in response received on 4 November 2020 and filed and relied upon the following documents which were before the Tribunal below: 1. Submissions of Respondent 2. Applicant's Submissions 3. Witness Statement of David Roptell 4. Witness Statement of Renata Sala 5. Affidavit of Duane Carey
4. In addition, the respondent filed on 9 November 2020, on a confidential basis, a bundle of the documents in dispute, such documents not to be released to the appellant or the public unless the Appeal Panel ruled that any of those documents should be released when deciding this appeal.
5. The appellant filed submissions in reply dated 20 November 2020.

Relevant Legislation

1. Relevantly, the GIPA Act provides as follows: "5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information-- (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 13 Public interest test There is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table 1 Responsible and effective government … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 2 Law enforcement and security … (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, … 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. … SCHEDULE 1 - Information for which there is conclusive presumption of overriding public interest against disclosure … 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5."

Ground 1 - Failure to consider privilege issue properly

1. The first ground of appeal is that the Tribunal made an error in failing to consider properly whether documents 27, 2, 3 and 4 were the subject of legal advice privilege pursuant to s 118 of the Evidence Act 1995 (NSW) (Evidence Act) before concluding that there was a conclusively presumed overriding public interest against disclosure pursuant to s 14(1) and cl 5 of Schedule 1 of the GIPA Act.

Reasoning of the Tribunal

1. The Tribunal declined to grant access to the above documents on the grounds of legal professional privilege. Its reasoning was as follows: "96 The LPP Information is contained in: (1) Part of document 2 - Investigation Report dated 4 July 2019. (2) Part of document 3 - Internal Memorandum (undated). (3) Part of document 4 - Consolidated minutes of the meetings of the CMT. (4) Document 27 - Legal advice dated 4 June 2019. 97 The Tribunal has previously stated in Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31]: "The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information." 98 Clause 5 in Sch 1 to the GIPA Act provides for such a conclusive presumption if the information would be privileged from production in legal proceedings on the ground of legal professional privilege, unless the privilege has been waived. The Tribunal has previously found that cl 5 of Sch 1 to the GIPA Act adopts the tests for the existence of legal professional privilege in the Evidence Act 1995 (NSW) (Evidence Act) (see Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 at [25]). Document 27 - request for legal advice and legal advice 99 As document 27 is the legal advice (and the request for the legal advice) it is convenient to consider it before documents 2, 3 and 4. 100 As outlined in the evidence of CI Carey and AI Sala, document 27 was prepared by a person who did not hold the certificate necessary to practice law in NSW but was reviewed and signed by CI Carey who did hold such a certificate. In Jacobs v The Queen [2013] NSWSC 633 (Jacobs), the Supreme Court considered whether advice was provided by a "lawyer" as defined in s 117 of the Evidence Act. In Jacobs, the advice was advice prepared by a Senior Sergeant Cooke of OLAU, who was not a legally qualified person but was a qualified Police Prosecutor. The evidence in Jacobs was that the work of Senior Sergeant Cooke was "closely supervised" and "signed off by" by the Manager of OLAU including the words "I agree with this advice". At [13], Davies J said that he does "not entertain any doubt in the light of that, that the advice which has been given … is the advice of a lawyer within the meaning of s 117 [of the Evidence Act]". 101 I have reviewed the legal advice and am satisfied it has been signed by CI Carey (including the words "I agree with this advice"). I accept the evidence of CI Carey and AI Sala with respect to the process through which advice is generally obtained from OLAU and the way in which document 27 was prepared and signed by CI Carey. Accordingly, I find that document 27 is information in respect of which it is to be conclusively presumed that there is an overriding public interest against disclosure pursuant to cl 5 of Sch 1 to the GIPA Act. Documents 2, 3 and 4 102 Significant parts of document 27 are reproduced in document 2 (the relevant parts being all of pages 4 and 5 with the exception of the first paragraph of page 4 of document 2). One sentence in document 3 describes the conclusion of document 27 with reference to various findings and issues identified in document 2. The minutes of one meeting of the CMT contained in document 4 summarise the nature and conclusions of document 27. 103 I have previously found that documents 2, 3 and 4 were prepared on a confidential basis. In addition, the request for advice was made in respect of matters arising from the investigation in respect of the Complaint Letter and it is consistent with the provision of this advice that the matters contained in the advice have been reproduced in documents 2, 3 and 4. In my view, the reproduction or summary of parts of document 27 in these other documents that were prepared on a confidential basis by the respondent (and with a limited number of police officers with authority to view those documents) does not waive the privilege. Accordingly, I find that the parts of documents 2, 3 and 4 and that reproduce or summarise the contents of document 27 are subject to the same conclusive presumption as document 27 and should not be disclosed. My conclusions regarding documents 2, 3 and 4 are in addition to my conclusions above in respect of these documents."
2. The evidence relied upon by the respondent and accepted by the Tribunal was relevantly summarised by the Tribunal as follows: "Evidence of Acting Inspector Renata Sala 23 Acting Inspector and Manager of the Operational Legal Advice Unit Renata Sala (AI Sala) was not called as a witness. Relevantly, the Witness Statement of AI Sala states (and I summarise and paraphrase): (1) The respondent's Operational Legal Advice Unit (OLAU) receives requests for advice from various units of the respondent and allocates each request for advice to a "legal consultant" for completion. Legal consultants are Senior Police Prosecutors who may, or may not, have legal qualifications. (2) The legal consultant provides the draft advice to their "coordinator" for review. The legal consultant who prepared the draft legal advice in this matter (document 27) was not a solicitor. Following this review the advice is provided to the Manager of OLAU. (3) The Manager of OLAU is required to be admitted solicitor with a practising certificate. The Manager of OLAU reviews each advice and may recommend changes. The Manager of OLAU signs each advice, once satisfied with it. Evidence of Chief Inspector Carey 24 As noted above, the respondent relied on the Affidavit of Chief Inspector and Manager of the Operational Legal Advice Unit Duane Carey (CI Carey) dated 4 March 2020 which states that he is the Manager of the OLAU of the respondent. CI Carey holds the substantive position of Manager of OLUA but was on leave at the time evidence was required to be filed in this matter. 25 Relevantly, CI Carey's affidavit states (and I summarise and paraphrase): (1) CI Carey reviewed the Witness Statement of AI Sala and, subject to one clarification identified below, agrees with the description contained therein for the preparation of legal advice by OLAU. (2) In respect of the legal advice in this matter (document 27), CI Carey states that he: (a) Reviewed the request for advice and all evidence supplied. (b) Reviewed the draft advice prepared by the Sergeant to ensure all legal issues had been identified and addressed. (c) Reached his own view with respect to the advice. (d) Settled and signed the advice. (3) If there are questions regarding the advice, those questions are referred to CI Carey as "for all intents and purposes, the advice is [his]". 26 CI Carey's affidavit clarifies a statement made in the statement of AI Sala that advice is "routed" to CI Carey. CI Carey's affidavit states that advice is not "simply routed" to him. Rather, as Manager of OLAU, CI Carey is responsible for all written advice from OLAU. 27 CI Carey was cross examined at the hearing. The respondent did not challenge CI Carey's evidence regarding the statements set out in [25] and [26], above."

Appellant's submissions

1. The Appellant's submissions were as follows: "9. At paragraphs 99 to 101 the Tribunal describes Document 27 as a "legal advice (and the request for [it])", notes it was drafted by someone without legal qualifications "but was reviewed and signed by CI Carey" who held a practising certificate in NSW, notes that on the authority of Jacobs v The Queen [2013] NSWSC 633 it nevertheless remains open to hold that the advice is that "of a lawyer within the meaning of s 117 [of the Evidence Act]", and then states it is "satisfied [the advice] has been signed by CI Carey". 10. However, that approach to the status of Document 27 does not engage with the requirements of s 118 of the Evidence Act, which effectively only extends the immunity from production afforded by legal professional privilege insofar as is necessary to prevent the disclosure of a confidential communication between "the client and a lawyer", "2 or more lawyers acting for the client" or the contents of a confidential document "prepared by the client, lawyer or another person" for the dominant purpose of a lawyer providing legal advice to the client. In order that confidentiality in the requisite sense arise, the issuer or recipient of the communication or author of the document must be "under an express or implied obligation not to disclose its contents". 11. The evidence relied on by the Respondent to prove its privilege claim in respect of Document 27 about the communication requesting 'advice' and its purpose is that it "concerned whether the actions of that officer and other police officers was lawful" (AI Sala at [17]). A claim of privilege is not established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving "legal advice": National Crime Authority v S (1991) 29 FCR 203 at 211-212 per Lockhart J; Candacal Pty Ltd v Industry Research & Development Board (2005) 223 ALR 284 at [70]; Seven Network Ltd v News Ltd [2005] FCA 142 at [6]-[8]. Here, it is not clear just what the inquiry into lawfulness was directed to and what parameters attended it: was it lawfulness in the sense that it involved a consideration of internal police conduct standards or in the sense that it examined and considered whether officers might be made the subject of criminal proceedings? Or was it merely directed to whether the officer's decision to arrest ECN was itself lawful? The fact that these matters are not revealed by the evidence of the Respondent, on whom the burden of substantiating the privilege claim rested, and that is not clear to what extent the Tribunal identified or considered them is the predicate for Ground 1: unless the document was properly the subject of the immunity in s 118 of the Evidence Act, it was not "information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)" within cl 5 of Schedule 1 of the GIPA Act. 12. ECN submits that this issue, viz. the status of Document 27 as subject to legal professional privilege, was critical to the Tribunal's consideration of the balancing test required by s 13 of the GIPA Act, as it effectively led to a conclusion that the document contained government information of the kind in Schedule 1 of the GIPA Act and thus it was conclusively presumed that there was an overriding public interest against disclosure of the document. 13. As such, the absence of proper engagement with whether the document was actually subject to legal professional privilege served to undermine the exercise of the Tribunal's task under s 13 of the GIPA Act, such that the Tribunal potentially exercised its power on an erroneous footing because it proceeded on the basis that the document was privileged and, therefore, may have misconceived what the exercise of the statutory power entailed, such that the decision was a purported but not a real exercise of the power conferred by the GIPA Act."
2. As explained in the appellant's oral address to the Appeal Panel, the above submission was directed to the fact that the Tribunal's reasoning did not expressly deal with all of the necessary requirements to make out a claim of legal professional privilege - namely, that the document be prepared for the dominant purpose of providing legal advice; that the author of the document is under an express or implied obligation not to disclose its contents; and that there has not been a waiver of such privilege.
3. The appellant submitted that the Tribunal either overlooked such matters or, alternatively, the Tribunal erred in failing to give adequate reasons for upholding the claim to legal professional privilege. The appellant submitted the respondent's evidence did not establish such elements.

Respondent's submissions

1. The respondent accepted it must satisfy the Tribunal that a confidential lawyer-client relationship exists, that the communication between lawyer and client was made for the dominant purpose of seeking or receiving legal advice and that privilege has not been waived.
2. The respondent referred to the appellant's submissions before the Tribunal below where the appellant questioned whether or not Document 27 was legally privileged based upon three arguments: 1. Whether the advice was that of a lawyer as it was drafted by a Police prosecutor who was not an admitted solicitor; 2. Whether the request and advice was for the dominant purpose of obtaining and providing legal advice; and 3. Whether, due to the extent of the information disclosed to the appellant, privilege has been waived.
3. The respondent contended that the appellant was raising a new argument on appeal, namely whether Document 27 was a confidential document for the purpose of s 118 of the Evidence Act.
4. The respondent contended that the Appeal Panel should be slow to permit a new argument to be ventilated on appeal which was not raised before the Tribunal below.
5. The respondent contended that the evidence before the Tribunal established that, or made it open to find that, the advice was for the dominant purpose of providing legal advice.
6. Further, the evidence established that there had been no waiver of that privilege and that the circumstances of the provision of the advice obviously meant that Document 27 was a confidential communication or document for the purpose of s 118 of the Evidence Act.
7. The respondent also referred to the circumstance of the Tribunal having before it Document 27 which it was invited to examine on the basis that inferences about the status of the document could be drawn from the face of the information contained in it, namely, that its content made plain that the request sought advice on legal issues and the responding advice wholly considered and advised on those issues.
8. The respondent submitted that if the Appeal Panel is of the view that the Tribunal did not properly consider the various elements of client legal privilege under s 118 of the Evidence Act, in the interests of expediency the Appeal Panel should reach its own decision on Document 27 by exercising its power under s 80(3)(a) of the NCAT Act, including by inspecting Document 27.

Appellant's submissions in reply

1. The appellant submitted that the submissions put before the Appeal Panel are no different to that which were alive before the Tribunal at first instance, namely whether the document was immune from production by reason of cl 5 of Schedule 1 of the GIPA Act.
2. The appellant accepted that the effect of cl 5 of the GIPA Act is to pick up the test for privilege that applies in "legal proceedings" which are set out in s 118 of the Evidence Act.
3. The appellant submitted that the mere assertion of privilege does not engage it and the appellant's position is that the Tribunal's reasons do not enable one to determine whether the Tribunal correctly applied the requirements of the test for privilege. Alternatively, the reasons of the Tribunal with respect to the point are deficient. In either case there is an error of law.
4. The appellant agreed that in the case of the Appeal Panel upholding this ground of appeal, it should examine the evidence and the document for itself and come to its own conclusion as to whether the document is properly the subject of client legal privilege rather than remitting the matter back to the Tribunal for reconsideration.

Consideration

1. Internal Appeals may be made as of right on a question of law and otherwise with permission (that is, "leave") of the Appeal Panel: s 80(2) of the NCAT Act.
2. In Prendergast v Western Murray Irrigation Ltd (2014) NSWCATAP 69 the appeal Panel set out at [13] a non-exclusive list of questions of law, including 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied.
3. Accordingly, we are satisfied that this ground of appeal raises questions of law which may be made by the appellant as of right.
4. We note that the appellant has not challenged the finding of the Tribunal that Document 27 was the advice of a lawyer within the meaning of s 117 of the Evidence Act. The lawyer being Chief Inspector Carey who is an admitted solicitor with a practising certificate.
5. The appellant accepted, rightly in our view, that in such circumstances Chief Inspector Carey is subject to an express or implied obligation to maintain confidentiality of communication between himself and his internal clients.
6. Accordingly, we do not need to consider any further this element of client legal privilege.
7. That then leaves the two issues as to whether or not the request and advice was for the dominant purpose of obtaining and providing legal advice and whether or not, due to the extent of the information disclosed to the appellant, privilege has been waived.
8. It was common ground between the parties before the Tribunal and before us that the use of the words "client legal privilege" in Schedule 1, clause 5 indicates that the GIPA Act adopts the Evidence Act test in relation to the existence of client legal privilege and waiver of this privilege. This position has been confirmed by the Tribunal: see Larsson v Office of Environment and Heritage [2014] NSWCA TAD 136 at [25]; Colefax v Department of Education and Communities (NSW) [2013] NSWADT 75 at [24]-[26]; Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 at [27]; Hargreaves v University of New England [2013] NSWADT 233 at [19] and Saggers v Environment Protection Authority [2014] NSWCATAD 37 at [26]. The position was questioned on appeal in Transport for NSW v Robinson [2018] NSWCA TAP 123, however, ultimately, the Appeal Panel determined that it was not necessary to determine whether the application of cl. 5 is by reference to the common law or Evidence Act for the purpose of resolving the appeal (at (43]).
9. The Tribunal clearly understood that this was the relevant principle of law to be applied as it stated: "the Tribunal has previously found that cl 5 of Sch 1 to the GIPA Act adopts the test for the existence of legal professional privilege in the Evidence Act (see Larsson v Office Environment and Heritage [2014] NSW CATAD 136 at [25])": at [98] of the Decision.
10. Further, the Tribunal stated that it had reviewed the legal advice and it accepted the evidence of Chief Inspector Carey and Ms Sala with respect to the process through which advice is generally obtained from OLAU and the way in which Document 27 was prepared and signed by Chief Inspector Carey: see [101] of the Decision. The Tribunal then stated: "[a]ccordingly, I find the document 27 is information in respect of which it is to be conclusively presumed that there is an overriding public interest against disclosure pursuant to cl 5 of Sch 1 to the GIPA Act": see [101] of the Decision.
11. The Tribunal at [103] of the Decision also specifically dealt with the issue of waiver. It decided that the relevant reproduction of parts of Document 27 did not waive the privilege.
12. Taking the Decision as a whole, we are not satisfied that the Tribunal identified the wrong issue or asked the wrong question or applied a wrong principle of law in upholding the claim to client legal privilege. Based upon the Tribunal having reviewed the legal advice in question, drawing the available interferences from the document itself and the Tribunal's acceptance of the evidence, in our view it is plain that the Tribunal was satisfied of the elements which make out a claim of client legal principle pursuant to s 118 of the Evidence Act, including whether or not the advice was prepared for the dominant purpose of obtaining and providing legal advice and that the privilege had not been waived.
13. A failure to provide reasons or adequate reasons, assuming an obligation to provide reasons, is an error of law. Under s 62(1) of the NCAT Act the Tribunal (including the Appeal Panel) is to ensure that each party is given notice of any decision made in proceedings. There is an express obligation to give written reasons for a decision in response to a request from a party, under s 62(2) of the NCAT Act. When such a request is made, a written statement of reasons must be given within 28 days and must, by virtue of s 62(3), set out: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based; 2. the Tribunal's understanding of the applicable law; and 3. the reasoning processes that led the Tribunal to the conclusions it made.
14. Even though there is no other express statutory duty to give reasons set out in the NCAT Act, the Tribunal nonetheless endeavours, as a matter of good practice, to provide reasons for final or contested decisions. Whether there is also a common law duty on the Tribunal to give reasons for some or all of its decisions is not settled: see NSW Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P at [54]-[55], [71]; Ward JA at [111]-[114]).
15. However, the nature and extent of the reasons required are variable, depending on the circumstances of the particular case: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Collins v Urban [2014] NSWCATAP 17 at [57]; DAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41 at [28]. We have come to the conclusion that even if the reasons could be regarded as inadequate, this ground of appeal should not lead to a different result or the matter being remitted.
16. In Beale, Meagher JA said at 444: It does not automatically follow that because reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there is an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.
17. His Honour then continued in the last paragraph at 444: Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti (Court of Appeal, 1 December 1994, unreported).
18. Assuming the error of law put forward by the appellant is made out, we were invited by the parties to examine Document 27 and the evidence led by the parties below ourselves. Having done so, we are satisfied that Document 27 is properly the subject of a claim for client legal privilege. Our reasons are as follows.
19. First, the request for advice gives rise to the natural and obvious inference that the advice, Document 27, was prepared for the dominant purpose of providing legal advice to the respondent. Second, the natural and obvious inference to be drawn from the advice is that it was prepared for the dominant purpose of providing legal advice to the respondent.
20. Third, this inference is supported by the evidence as to the operation of the OLAU, and CI Carey's role, generally, and in respect of Document 27.
21. Finally, in our view there has been no waiver of that privilege. On the evidence before us, the substance of the advice has not been disclosed. Further, CI Carey's affidavit states that privilege over NSW Police Force legal advice can only be waived by the Commissioner of Police and privilege over Document 27 has not been waived.
22. Accordingly, we reject this ground of appeal.

Ground 2 - illogicality, irrationality or unreasonableness of decision because of failure to properly balance the relevant considerations

1. Ground 2 was that the Decision in relation to Documents 2, 20 and 21 was illogical, irrational or unreasonable because it did not properly balance the relevant considerations mandated by section 13 of the GIPA Act.

Appellant's submissions

1. As to Document 2, the investigator's report, at [56] of its reasons the Tribunal found that "greater weight should be given to the public interests [against disclosure in cls 1(f), 1(d) and 2(b) of the Table in s 14] because they support robust investigation processes that allow allegations of potential misconduct to be investigated on a confidential basis and to ensure relevant information is provided from all sources".
2. Clause 1(f) is directed to prejudice to the effective exercise of an agency's functions. The appellant submitted there must be some proper foundation from which to conclude that disclosure of the parts of Document 2 which have been redacted would impair or harm that functioning. There must be more than "a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived" (Leech v Sydney Water Corporation [2010] NSWADT 198 at [28]).
3. Clause 1(d) is directed to prejudice to the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. The appellant submitted that this consideration can be adequately addressed by only carving out from disclosure any material that has in fact been provided on a confidential basis. To otherwise disclose material in the investigators report could not "reasonably be expected" to make it harder for Police investigations to obtain relevant information from all sources.
4. Clause 2(b) is directed to prejudice to the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. The appellant submitted that in circumstances where the "contravention or possible contravention" was seemingly being dismissed by the report, both detection and investigation could not rationally be said to be prejudiced: there was nothing further to detect and the investigation had concluded (hence the report).
5. As to Documents 20 and 21, the investigation plan and terms of reference (respectively), the Tribunal at [81]-[82] and [84] reasoned that disclosure "could reasonably be expected to prejudice the effectiveness of the respondent's functions for the purpose of cl 1(f) of the Table [in s 14]" and thus the "public interest of retaining a robust and confidential investigation process that identifies all possible matters arising from complaints and to ensure relevant evidence is obtained" outweighed the competing interests favouring disclosure.
6. The appellant submitted that the proposition which the Tribunal has proceeded on is effectively that disclosure of these early investigatory documents in this particular case would generally have the consequence that the functioning of the respondent would be harmed. ECN contends that this would permit a speculative concern to outweigh the serious matters favouring disclosure and thus would be unreasonable and in error.

Respondent's submissions

1. The respondent submitted that the appellant, in reality, disagrees with the Tribunal's conclusions on the evidence before it that certain effects could reasonably be expected to arise, which is a question of fact. It does not amount to an irrational, illogical or unreasonable conclusion. The fact that the appellant considers there ought to have been "more" evidence in order to determine that disclosure could reasonably be expected to have a certain effect does not mean that there was an absence of evidence or that it was not open to the Tribunal to reach its findings.
2. The respondent submitted that the appellant simply disagreed with the outcome of the weighing exercise and the conclusions drawn by the Tribunal on the evidence before it but that this is not a basis for appeal on a question of law.

Consideration

1. We substantially agree with and adopt the submissions of the respondent in respect of this ground of appeal.
2. The High Court has made it clear that a court or Tribunal should be slow to intervene or give an affirmative answer that the decision is irrational or illogical: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. If logical or rational minds might differ in their opinion of or conclusion on the same evidence, the decision cannot be seen to be illogical, irrational or unreasonable.
3. The key question is whether the finding of the Tribunal was open to it on the evidence, or whether the finding has any evidentiary basis: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [355-6]; Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 at [53].
4. In this regard, it has previously been held by the Appeal Panel that an overly demanding standard of evidence being required to support the application of the considerations in the Table to s 14 and whether disclosure of information can "reasonably be expected" to have the stated effect(s), should not be given. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel found that the Tribunal had erred by requiring the agency to provide "factual" evidence in order to satisfy the "could reasonably be expected" standard. The Appeal Panel considered that an ordinary weighing of the material by the Tribunal would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses. The Tribunal is entitled to consider the confidentiality of the process under consideration, the rationale for such confidentiality and the natural implication for future supply of information if such confidentiality is undermined: at [63].
5. It has frequently been held that due to the forward looking nature of many of the considerations in the Table to s 14, in particular clause 1(d), 1(f) and 2(b), the analysis may necessarily be abstract or at a broader operational level, rather than on the particulars of the instant case: Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [26], endorsing Department of Education and Training v Mullett [2002] NSWADTAP 13 at [58].
6. We note that in order to make out this ground of appeal we need to reach the conclusion that no reasonable Tribunal could have reached the conclusion which the Tribunal below did reach. It is not sufficient that we or another Tribunal Member may have come to a different conclusion on the evidence before it.
7. The Tribunal had before it the evidence of Super Intendant Roptell. In summary, he gave evidence in relation to the investigation of Part 8A matters by NSW Police, including investigation processes and procedures for maintaining the confidentiality of these investigations. He gave evidence as to the likely prejudice to the investigation process should internal investigation documents, such as Documents 2, 20 and 21, be disclosed.
8. In our view, there was a reasonable basis, grounded in the evidence of Super Intendant Roptell and the facts and circumstances naturally flowing from the investigation process generally, for the Tribunal to make findings that clauses 1(d), (f) and 2(b) of the Table to s 14 apply. The Decision did not rest on a claim of prejudice to reporting of misconduct but rather on the proposition, supported by the evidence of Super Intendant Roptell, that release of information generated in the investigation of internal complaints of misconduct in the workplace could reasonably be expected to prejudice the agency's functions in conducting such investigations and in performing their human resource functions: see 29 of the Decision.
9. Further, we also rely upon our reasons with respect to ground 3 below in respect of Document 2.
10. Accordingly, we dismiss this ground of appeal.

Ground 3: denial of procedural fairness - constructive failure to exercise jurisdiction

1. This third ground of appeal was that there was a failure to engage with or respond to, substantial, clearly articulated arguments relying upon established facts, thus causing either a breach of procedural fairness (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] per Gummow and Callinan JJ ) or a constructive failure to exercise jurisdiction.

Appellant's submissions

1. The appellant contended that, with respect to the finding that the disclosure of Document 2 could reasonably be expected to prejudice the supply of the information to the Police, the Tribunal failed to respond to substantial arguments which ECN advanced in her written arguments and oral submissions.
2. At 54, the Tribunal found that disclosure of the balance of Document 2 could reasonably be expected to prejudice the supply of information to the police from members of the public.
3. In reaching this conclusion, at [50], the Tribunal had concluded that an investigation under Part 8A of the Police Act required information from members of the public who are under no obligation to provide such information. The appellant contends that, by reaching this conclusion, the Tribunal failed to consider two substantial arguments that she relied on.
4. First, the appellant submitted to the Tribunal that all of the witnesses were prepared to give evidence to the effect of their statements to the police in a court and that therefore they could have no expectation of confidentiality. The appellant argues that this distinguished the case from situations where material was provided to an investigation in confidence.
5. Second, the appellant submitted to the Tribunal that the analysis in Applicants v Commissioner of Police [2015] NSWCATAD 22 concerning the release of documents (including an investigators' report) applied to the instant case.
6. The appellant complains that the Tribunal did not deal with these submissions at all in its reasons and made no reference to the decision of Applicants v Commissioner of Police (2015) NSWCATAD 22. The appellant submitted that the Tribunal's failure to consider these arguments when concluding that the balance of Document 2 should not be disclosed, constituted a denial of procedural fairness or otherwise amounts to a failure by the Tribunal to exercise its jurisdiction.

Respondent's submissions

1. The respondent's submissions may be summarised as follows: 1. Whilst the evidence of many witnesses provided to the investigator was not provided on a confidential basis, such evidence was made available to the appellant. 2. Other information was provided to the investigator in confidence. 3. At 28 of the Decision the Tribunal noted that the appellant's submissions addressed "numerous other legal arguments relevant to the overriding public interest against disclosure claimed by the respondent". 4. Accordingly, the Appeal Panel should not be satisfied that the arguments put on appeal were not considered by the Tribunal below. 5. The respondent's case against disclosure did not rest on prejudice to reporting of misconduct but rather on the proposition, supported by the evidence, that release of information generated in the investigation of internal complaints of misconduct in the workplace could reasonably be expected to prejudice the agency's functions in conducting such investigations and in performing their human resource functions: see 29 of the Decision. 6. The mere failure to cite or refer to Applicants v Commissioner of Police (2015) NSWCATAD 22 did not amount to an error of law because: 1. The Tribunal was not bound to follow this decision: Commissioner of Police v Roy [2013] NSWADTAP 6 at [9]. 2. The Tribunal is not required to give exhaustive reasons including on all aspects of a party's legal submissions and cases cited: citing JCB Enterprises Pty Ltd v Mangion [2016] NSWCATAP 180 at [9]- [12]. 1. Non-disclosure of parts of Document 2 was also based upon the fact that the report reproduced the legal advice in Document 27, and it contained highly sensitive personal information of police officers. 2. The Tribunal's reasons at [50] and [54] demonstrate that the Tribunal recognised the obligation of police officers to cooperate with an investigation and provide statements to it as referred to by the appellant in her submissions. This was reflected in the release of the statements of the police officers.

Consideration

1. The Tribunal at [42] of the Decision accepted the evidence of SI Roptell that investigations involving the conduct of serving police officers under Part 8A of the Police Act are particularly sensitive due to the matters raised and the potential impacts of all parties involved.
2. The Tribunal accepted the evidence of SI Roptell that the investigative process conducted by the respondent is confidential and it found that this is, in part, to protect the complainant, witnesses, and subjects of an investigation while all relevant evidence is obtained and assessed.
3. At [50] the Tribunal accepted the written evidence of SI Roptell that the ongoing confidentiality of the information "encourages the provision of voluntary and open and honest information".
4. The Tribunal then at [51] was satisfied that Document 2 was prepared by the respondent as a confidential document and that the confidentiality of Document 2 facilitates the effective exercise of the respondent's functions.
5. Critically at [52] the Tribunal accepted the evidence of SI Roptell that an investigative report will identify lines of enquiry and potential conduct issues that may not be apparent from the allegation received by the respondent in order to identify additional matters for investigation and broader operational issues for the respondent.
6. At 54 the Tribunal accepted that disclosure of Document 2 would prejudice the investigation of a possible contravention of the law by disclosing investigatory methods that are not publicly known for the purposes of clause 2(b).
7. The Tribunal then embarked upon the balancing exercise as follows: 55 Turning to the balancing exercise required by s 13 of the GIPA Act, each of the public interests against disclosure outlined above are significant. I have reviewed document 2 and the information disclosed to the applicant before the hearing. From my review I have determined that almost all of the information contained in the section entitled "Evidence" has already been disclosed to the applicant. For the reason stated in relation to document 1, the weight to be attributed to these considerations should be very low. On balance, I consider that the public interest of informing the public about the operations of the respondent and the applicant's interest in having information regarding her complaint should be given greater weight than the public interests against disclosure in cls 1(f), 1(d) and 2(b) of the Table. 56 On balance, I consider that the public interests against disclosure should be given greater weight than those in favour of disclosure in respect of the remaining sections of document 2 in respect of which the relevant information has not been disclosed. In my view, greater weight should be given to the public interests because they support robust investigation processes that allow allegations of potential misconduct to be investigated on a confidential basis and to ensure relevant information is provided from all sources. In addition, the information contained in the sections of document 3 entitled "Issue 3" and "Other Issues" do not directly relate to an allegation raised in the Complaint Letter and, in my view, this reduces the weight that should be given to the public interests in favour of disclosure of these sections of document 2.
8. In summary: 1. The Tribunal recognised and accepted that police officers provide information to an investigation regardless of whether such information may become publicly known: at [50]. 2. Almost all of the information in the nature of witness statements and in the section entitled "Evidence" had already been disclosed to the appellant. This therefore dealt with the issue as to whether or not statements from members of the public should be revealed to the appellant: see [55] of the Decision. 3. Investigation reports, such as Document 2, will identify lines of enquiry and potential conduct issues that may not be apparent from the allegations received by the respondent in order to identify additional matters for investigation and broader operational issues for the respondent; 4. It was open to the Tribunal, on the evidence, to find that disclosure of parts of Document 2 could prejudice the investigation of possible contravention of the law by disclosing investigative methods that are not publicly known for the purposes of clause 2(b). 5. Parts of the investigation report, Document 2, do not directly relate to an allegation raised in the Complaint Letter: [56] of the Decision. 6. It was open to the Tribunal on the evidence to find that non-disclosure of Document 2 supports robust investigation processes that allow allegations of potential misconduct to be investigated on a confidential basis and to ensure relevant information is provided from all sources.
9. In our view, the way in which the Tribunal dealt with the evidence before it and the submissions of the parties sufficiently dealt with the central thrust of the appellant's submissions before it. It was mindful that much of the evidence and information obtained by the respondent was received on a non-confidential basis and in turn this was disclosed to the appellant.
10. We are not satisfied that the Tribunal below overlooked the submissions being made by the appellant nor that it failed to give adequate reason for its conclusions. There was no obligation to refer to the decision of Applicants v Commissioner of Police (2015) NSWCATAD 22 and expressly distinguish it. It was not bound to follow it.
11. The Tribunal carefully considered the appellant's submissions and relied upon other matters, as discussed above and in its reasons, for concluding that disclosure should not occur, which did not involve overlooking the appellant's submission that much of the information received was not received on a confidential basis in this regard.
12. Accordingly, we dismiss this ground of appeal.

Orders 1. The Appeal is dismissed. 2. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), order that disclosure of the name of the appellant 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 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: 14 December 2020