Gill v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-07-01

Attorney-General of New South Wales (Intervenor) Representation: Counsel: D T Kell SC and C Raad (Intervenor)

Solicitors: Applicant (self-represented) Crown Solicitor, (Respondent) Attorney-General of New South Wales (Crown Solicitor) File Number(s): 2023/00266703 Publication restriction: 1. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the confidential material filed by the respondent or matters contained in this material is prohibited.

Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the confidential material or matters contained in this material is restricted to the Respondent and the Tribunal.

Access application

On 20 March 202, the applicant lodged an access application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) seeking access to the following information held by the respondent: 1. all documents pertaining to application for Telecommunications Interception Warrant number C19969-00-00 including but not limited to the affidavit sworn by unknown deponent in support of that application; 2. notes made in NSW Police Force Duty Book number D103756 referred to in paragraph 3 of the statement of Constable Annabelle Evans dated 6 June 2020; 3. the email and photograph referred to in par [9] of the statement of Constable Evans; 4. all documents referred to in par [18] of the statement of Constable Evans; 5. all documents pertaining to application for arrest warrant of the applicant's nephew Mr Mika Sebastian Gill including any required affidavit authorizing the arrest of Mr Mika Gill on 27 March 2020; 6. all documents pertaining to application for Arrest Warrant of the acquitted including any required affidavit authorizing the arrest the arrest of Mr Mika Gill on 12 April 2020; 7. pp 4 and 5 of the statement of Annie-Rose Collis dated 20 August 2019 (being pp 265 and 266 of the Brief of Evidence); 8. the COPS report if any in addition to Case Report 69034371 in relation to H385070493; 9. an unredacted copy of p 22 of Case Report 69034371.

Original Decision

On 12 April 2023, the respondent made a decision under ss 58(1)(b) and 58(1)(d) of the GIPA Act to the effect that: 1. information was not held in relation to items 5 and 6 of the access application, and 2. access was refused in relation to information responsive to the remainder of the access application (Original Decision). Access was refused on the basis that it was to be conclusively presumed that there was an overriding public interest against disclosure applied to the information, which was the "excluded information" of the NSW Office of the Director of Public Prosecutions (ODPP): see s 14(1), cl. 6 of Sch 1, cl. 1 of Sch 2 of the GIPA Act. The ODPP had advised the respondent that the information was its excluded information, and that it did not consent to its disclosure.

Internal Review Decision

On 9 May 2023, the applicant applied for internal review of the Original Decision.
On 31 May 2023, the respondent made a decision on internal review, finding that: 1. no information was held in relation to items 5 and 6 (pursuant to s 58(1)(b) of the GIPA Act); 2. access was refused in relation to information responsive to the remainder of the access application on the basis of the conclusive presumption (pursuant to s 58(1)(d) of the GIPA Act) (Internal Review Decision).

External review by the Information Commissioner

On 14 June 2023, the applicant applied for external review by the Information Commissioner.
On 21 July 2023, the Information Commissioner delivered a report in which she concluded that the respondent's decision was justified and made no recommendation to the respondent.

Application for administrative review

On 22 August 2023, the applicant lodged an application for administrative review of the Internal Review Decision in the Tribunal.
While preparing the respondent's materials and submissions for these proceedings, the ODPP informed the respondent that only some (and not all) of the responsive information was the "excluded information" of the ODPP to which it did not consent to disclosure. As a result, the respondent turned to consider the remainder of the responsive information on other bases under the GIPA Act.
During that consideration, it became apparent that some of the responsive information was information to which prohibitions on "dealing in" that information applied, pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act).
The respondent submits raises issues about the construction and operation of the TIA Act and the GIPA Act in relation to that information, including constitutional issues.

Intervention of the Attorney-General

Shortly after those issues were identified, on 22 November 2023, the Attorney General of New South Wales (Attorney) intervened in the proceedings under s 44(4)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
On 18 December 2023, the respondent released to the applicant a redacted copy of information responsive to item 2 of the access application.
The respondent otherwise maintains that the information sought is subject to a conclusive or overriding public interest against disclosure, is not held, or is information to which the TIA Act applies and as a result is not subject to the application of the GIPA Act.

Background to application

As the applicant explains in his submissions, Mr Mika Gill was charged with 11 counts of sexual assault; 2 charges were withdrawn prior to the criminal trial but the remainder were maintained. Mr Mika Gill under arrest and caution informed the respondent that he had had consensual sex with the two complainants in a "one night stand".
After the jury retired to consider its verdict, the jury about an hour later delivered nine unanimous verdicts of not guilty. The respondent submits that: The jury confirmed what the Respondent knew when the process began. The Respondent failed to have regard to evidence in her possession and initiated a prosecution in which she asserted that it could prove beyond a reasonable doubt that events had occurred while her own records indicated that they almost certainly had not.

Summary of applicant's position

The applicant submits that, for the reasons set out in his lengthy written submissions, the correct and preferable decision is that the access application, as amended, in his submissions should be upheld in full.
The applicant submits that the public interest considerations for disclosure outweigh those against it. In summary, the applicant submits that: the Tribunal should have particular regard to the fact that had the Defence requested any of this information prior to or during the trial it almost certainly would have been ordered that it be disclosed; that there are continuing restrictions on publication of any of this material regardless of provisions of the GIPA Act and that it is completely within the power of the Respondent to prevent herself from ever again receiving an application like this which does not attract the conclusive presumption simply by disclosing to the Defence all evidence which she also discloses to the Director.

Summary of respondent's position

The respondent submits that the Tribunal should find that the correct and preferable decision is: 1. to make no decision in relation to information responsive to items 1 and 4 on the basis that it is subject to prohibitions on "dealing" under the TIA Act. 2. that information responsive to items 5 and 6 of the access application is not held by the respondent; 3. to refuse access to the information responsive to items 7 and 8 of the access application on the basis that there is a conclusive presumption of an overriding public interest against its disclosure which applies because the information is "excluded information", being information that relates to the prosecuting functions of the ODPP; 4. to refuse access to the information responsive, in part, to item 2, as well as items 3 and 9 of the access application on the basis that there is an overriding public interest against its disclosure.

Preliminary Issue

To the extent to which time to apply for administrative review by the Tribunal needs to be extended under s 101 of the GIPA Act, the respondent neither consents nor opposes such an extension.
Accordingly, I extend the time for the filing of the present application to 22 August 2023.

Evidence

The evidence before the Tribunal included the following.
First, the respondent's open bundle of evidentiary materials filed 19 December 2023.
Secondly, the affidavit of Inspector Sasha Harding sworn 14 December 2024. Inspector Harding is an Inspector attached to the Covert Applications Unit of the NSW Police Force (NSWPF).
Inspector Harding is an Inspector attached to the Covert Applications Unit (CAU) of the NSWPF. He is presently the CAU's Manager.
In summary, Inspector Harding says: 1. the CAU receives applications from NSWPF officers for various covert applications, including applications for telecommunications interception warrants under the TIA Act; 2. where an interception warrant is required, an officer first makes a request to the Telecommunications Interception Unit (TIU) of the NSWPF. The role of the TIU is to support the NSWPF investigations by facilitating the lawful interception of telecommunications services. Before requesting the services of the TIU, the investigator must ensure the investigation meets certain criteria. These criteria will be used to assess and prioritise requests for TIU resources; 3. after being triaged and the TIU has assessed that the request has met the criteria for acceptance, formal approval will be given to the investigator to make an application through the CAU for a telecommunications interception warrant. The investigator will then make an application to the CAU where they will provide an affidavit in support of an application for a warrant; 4. the coordinator of the CAU triages all requests and then allocates compliant applications to a legal consultant for processing. This officer will then liaise with the officer in charge regarding the application and will ensure it is legally compliant before making a formal application to a nominated member of the Administrative Appeals Tribunal or an eligible Judge for a telecommunications interception warrant.
For the purposes of making his affidavit, Inspector Harding reviewed information that was responsive to Items 1 and Item 4. Based on his experience as an Inspector in the NSWPF and as the manager of the CAU, he considers that the information is information about an application for and was prepared for the sole purpose of applying for, an interception warrant under the TIA Act.
Thirdly, a redacted affidavit of Detective Chief Inspector Grant Watson of the NSWPF affirmed 19 December 2023.
Detective Chief Inspector Watson is the Crime Manager of the Leichhardt Area Command of the NSWPF. In this role he holds a strategic management position, responsible for the development and management of crime investigations and crime reduction strategies in accordance with the policing strategy of the Police Area Command. He is also a member of the PAC Management Team, responsible for the efficient running of the Crime Prevention Unit, Proactive Crime Team, Command Criminal Investigation Unit and the technical/quality aspects of investigations.
In summary, Detective Chief Inspector Watson states, under the heading "Disclosure of information provided to the NSWPF in confidence, which would prejudice the exercise of its functions", that: 1. the information responsive to Item 3 of the access application is information supplied to the NSWPF by a member of the public in the course of an investigation and to progress that investigation. The information is an internal NSWPF email containing a photograph attachment. This information was provided by that member of the public with an expectation of confidentiality. Detective Chief Inspector Watson would not expect information of that nature to be publicly released; 2. based on his experience in managing and dealing with information held by the NSWPF, and with investigating matters in my capacity as a serving police officer, it is his belief that individuals who supply information to police officers for the purpose of an investigation have an expectation that the information will be maintained confidentially. Detective Chief Inspector Watson says that he is aware that members of the public often express concern about the confidentiality of the information they are supplying, and that officers will give assurances of confidentiality to encourage members of the public to provide information. Even where that assurance is not explicitly provided, Detective Chief Inspector Watson says that in his experience it is usual to preserve the confidentiality of that information, except to the extent that disclosure is necessary for the purpose of an investigation or legal proceedings; 3. the regulatory framework within which the NSWPF operates is consistent with that community expectation of confidentiality. NSWPF officers are subject to reg 76 of the Police Regulation 2015 (NSW), which requires that members of the NSWPF treat all information which comes into their knowledge in their official capacity as strictly confidential, and that they are not to disclose confidential information without proper authority; 4. the NSWPF Code of Conduct and Ethics also emphasises the importance of preserving the confidentiality of information. 5. the NSWPF is dependent on the willingness of members of the public to cooperate with it, including by providing information to assist it with investigations and other police functions. It is generally recognised within the NSWPF that such cooperation depends on an expectation that information provided to the NSWPF will be kept confidential, and on the fact that members of the public trust the NSWPF to do that;' 6. in his experience, this expectation of confidentiality and trust applies across all matters, regardless of the apparent seriousness of the information, of the police investigation, or of the part of the NSWPF that is dealing with the information. In particular matters, there might be a heightened need for sensitivity and confidentiality; 7. from his experience working for the NSWPF, he is aware that information provided to the NSWPF is often extremely sensitive for a range of reasons. The release of information in breach of the expectation of confidentiality that usually attaches to information provided to the NSWPF can breach a person's privacy, cause embarrassment, and potentially expose a person to physical and psychological harm or to significant consequences in their lives. It can also be very unpredictable how people will react to the release of information. Sometimes information that appears to be innocuous or insignificant can actually have serious consequences, or the whole context in which it might play a role might not be known when the information is released; 8. in Detective Chief Inspector Watson's view, the release of the information responsive to Item 3 could reasonably be expected to have a systemic impact on the capacity of the NSWPF to gather information necessary for the effective exercise of its functions. He considers that the circumstances of the provision of information and the information contained in the information responsive to Item 3 is particularly sensitive personal information. The provision of information to the NSWPF in matters concerning alleged sexual assaults depends on trust between the NSWPF and members of the public such as alleged victims, and in his opinion that trust is in turn dependent on the respect for and preservation of the confidentiality of information provided to the NSWPF, unless it must be revealed in the course of an investigation or legal proceedings. Persons including alleged victims are concerned that the information they provide to the NSWPF, and the circumstances and details of when they supply that information, such as the information responsive to Item 3, could be revealed to members of the public at large in response to a GIPA Act application. Detective Chief Inspector Watson is concerned this could impact the ability of the NSWPF to receive reports and information from the public and effectively perform its law enforcement and investigation functions. 9. the NSWPF is dependent on the willingness of members of the public to disclose information to it, in order to enable it to exercise its functions effectively. Detective Chief Inspector Watson considers that a reduction in the flow of confidential information to the NSWPF would prejudice the ability of the NSWPF to exercise those functions and that any reduction in the number of allegations and reports made to the NSWPF, or in the willingness of members of the public to cooperate with an investigation, would negatively impact the ability of the NSWPF to exercise its investigative and law enforcement functions. 10. In relation to items 2 and 9: 1. the information responsive to Items 2 and 9 is information about the confidential deliberations and methodology of NSWPF relating to a criminal investigation; 2. The information responsive to Items 2 and 9 contains the confidential deliberations and methodology employed by the NSWPF in conducting criminal investigations, including locating and identifying persons of interest, evidence and other relevant information. This methodology is confidential and not known to members of the public.
Detective Chief Inspector Watson also states that, on his review of the Confidential Bundle, the information responsive to items 2 and 9: 1. is information about the confidential deliberations and methodology of NSWPF relating to a criminal investigation; 2. contains the confidential deliberations and methodology employed by the NSWPF in conducting criminal investigations, including locating and identifying persons of interest, evidence and other relevant information. This methodology is confidential and not known to members of the public.
Fourthly, a letter from the ODPP to the Crown Solicitor's Office dated 23 October 2023.
Fifthly, part of a transcript of an interview between police and Mr Mika Gill.
Sixthly, a letter from the applicant to the Crown Solicitors Office dated 25 June 2024.
Also before the Tribunal was confidential evidence of the respondent being a bundle of documents filed 19 December 2023 (Confidential Bundle) and the unredacted affidavit of Detective Chief Inspector Grant Watson of the NSWPF affirmed 15 December 2023.
The Confidential Bundle included: [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

Relevant law and principles

I adopt the summary of the relevant law and principles in relation to the GIPA Act as set out at [21] to [24] of the Tribunal's recent reasons for decision in Sicard v The Hills Shire Council [2024] NSWCATAD 162.
In particular, I note that: 1. the object stated under s 3(1) of the GIPA Act is to open government information to the public by authorising and encouraging proactive public release of government information (s 3(1)(a)); and giving members of the public an enforceable right to access government information (s 3(1)(b)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object: s 3(2)(a); 2. s 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information; 3. s 8 of the GIPA Act authorises an agency to release information held by it to a person in response to an informal request, unless there is an overriding public interest against disclosure of the information. The term "informal request" is not defined; however, s 8(1) makes it clear that an informal request is a request that is not an access application; 4. generally speaking, the use or disclosure of information to which access is provided in response to an access application cannot be made subject to conditions: GIPA Act, s 73; 5. s 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it unless there is an overriding public interest against disclosure; 6. s 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Section 12(2) sets out several examples of public interest considerations in favour of disclosure; 7. s 13 of the GIPA Act provides that 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. The balancing exercise set out in s 13 "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74]; 8. access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at [6]; 9. s 14(1) of the GIPA Act provides that 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 to the GIPA Act. The public interest considerations listed in the Table to s 14 of the GIPA Act are the only other considerations that may be taken into account under the GIPA Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information; 10. the Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
To those principles can be added that in an application for review under s 100 of GIPA, the onus lies on the respondent to justify the decision not to provide access to government information.
As to the TIA Act, the Attorney submits that, in submissions adopted by the respondent, subject to certain exceptions: 1. s 7(1) of the TIA Act provides that a person shall not intercept, authorise, suffer or permit another person to intercept, or do any act or thing that will enable them or another person to intercept, a communication passing over a telecommunications system; 2. the prohibition in s 7(1) does not apply to or in relation to the interception of a communication under a warrant: s 7(2)(b); 3. several types of warrants may be issued under Chapter 2 of the TIA Act. These are known as "interception warrant[s]": s 5(1). The NSW Police Force is, relevantly, an "interception agency" that is authorised to apply for an "interception warrant": see the definitions of "agency" and "interception agency" in s 5(1), read with s 34 and the definition of "eligible authority" in s 5(1); 4. an application for an interception warrant may be made on an agency's behalf by, in the case of a police force of a State, an officer of that police force: s 39(2)(c). Applications are made to an eligible Judge or a nominated Administrative Appeals Tribunal member: s 39(1)(b). Save for urgent cases, applications must be in writing, specify the name of the agency and the name of the person making the application on the agency's behalf and be accompanied by a supporting affidavit complying with s 42. 5. the TIA Act regulates the way in which "interception warrant information" may be used and disclosed. That term is defined in s 6EA of the TIA Act to mean: 1. information about any of the following: 1. an application for an interception warrant; 2. the issue of an interception warrant; 3. the existence or non-existence of an interception warrant; 4. the expiry of an interception warrant; or 1. any other information that is likely to enable the identification of: 1. the telecommunications service to which an interception warrant relates; or 2. a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.
After setting out the terms of items 1 and 4 sought by the applicant, the Attorney submits that the information responsive to items 1 and 4 is "information about" ... "an application for an interception warrant", and is therefore an "interception warrant information" within the meaning of s 6EA(a)(i) of the TIA Act.
The Attorney submits that: 1. s 63(2) of the TIA Act provides that a person must not "deal in" interception warrant information, noting that s 63(2) provides: 63 No dealing in intercepted information or interception warrant information … (2) Subject to this Part and section 299, a person must not, after the commencement of this subsection: (a) communicate interception warrant information to another person; or (b) make use of interception warrant information; or (c) make a record of interception warrant information; or (d) give interception warrant information in evidence in a proceeding. 1. a person who contravenes s 63(2) is guilty of an indictable offence which is punishable on conviction by imprisonment for a maximum of two years: TIA Act, s 105.

Items 1 and 4

In summary, I accept the respondent's submissions, namely that the information responsive to items 1 and 4 is subject to the TIA Act, and the Tribunal cannot make any determination or decision under the GIPA Act in relation to these items.
This is for the following reasons.
As the Attorney submits: 1. the prohibition in s 63(2) is expressed in very broad terms: see Mullet v Attorney-General's Department (Cth) [2012] AATA 103 at [99] fn 106, [111] fn 126. It applies to any "person", including "a body politic or corporate as well as an individual": Acts Interpretation Act 1901 (Cth), s 2C(1), and prohibits a range of acts, including "communicating" interception warrant information to another person (a term which includes to "divulge": see the definition of "communicate" in s 5(1)) and "mak[ing] use of" interception warrant information; [1] 2. the prohibition in s 63(2) is expressed to apply "subject to" Part 2-6 and s 299 of the TIA Act. The "comprehensive" set of exceptions in Part 2-6 "are detailed and tightly worded", "they bespeak careful, detailed and comprehensive attention, both as a matter of policy and as a matter of drafting, to the situations in which the legislature would permit information to be communicated, used etc in a way that would otherwise be in contravention of [s 63]": Commissioner, Australian Federal Police v Samsonidis [2007] FCAFC 54; 158 FCR 276 at [38]; 3. the TIA Act contemplates that interception warrant information may be used or communicated only in the particular contexts or for the particular purposes carved out in the exhaustive list of exceptions in Part 2-6 and s 299 of the TIA Act; 4. in Samsonidis, Jessup J said in this regard (at [48]-[49]): 48 Relevantly to the present case, the purpose of the TIA Act is, as stated in the preamble, to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances'. Chapter 2 of the TIA Act deals with the matter of the interception of telecommunications. It commences with s 7(1), which contains a sweeping prohibition. The balance of the chapter is largely concerned with the exceptions to that prohibition. Relevantly to the present matter, there is a pattern in the chapter of providing for an exception, and then limiting the extent to which information obtained as a result of the application of the exception may be used, communicated etc. Thus it may be seen that the area marked out by each exception is tightly defined and guarded. Each seepage of information beyond any such area should rightly be regarded as a failure to achieve the object to which the preamble refers, and which is given practical expression in s 7(1) and the 'special circumstances' to which subsequent provisions of Chapter 2 relate. 49 In my view, both the nature of the subject matter of, and the detailed provisions in, the TIA Act bespeak the appropriateness of a court showing particular deference to the terms in which the legislature has chosen to express itself. It is those terms which should, save in a very clear case, be treated as embodying legislative purpose. Relevantly to the present matter, I can think of no reason why the purpose of the legislation should be seen as anything other than preventing the communication, use etc of lawfully intercepted information save in the specific circumstances for which the TIA Act itself provides. Section 63 operates subject to Part 2-6, in which words I discern a purpose that only the provisions of that part should qualify the otherwise absolute prohibitions set out in the section itself. (See too John Fairfax Publications Pty Ltd v doe (1995) 37 NSWLR 8 to similar effect at [97]) 1. none of the exceptions in Part 2-6 of the TIA Act applies in the context of an agency (and therefore also the Tribunal, standing in the shoes of the agency to conduct an administrative review) considering an access application made under the GIPA Act. In particular, s 67 provides that an officer or staff member of an agency may, for a permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of interception warrant information: s 67(1)(a). None of the permitted purposes prescribed in s 5(1) of the TIA Act authorises an officer or staff member of the NSW Police Force to "deal with" such information when considering an access application under the GIPA Act. 2. nor do any of the permitted purposes permit the disclosure of interception warrant information in response to an access application under the GIPA Act. In particular, while one "permitted purpose" authorises disclosure for a "relevant proceeding", neither an access application made under the GIPA Act, nor an administrative review application in respect of a decision made under the GIPA Act, constitutes a "relevant proceeding" within the meaning of the definition of that term in s 6L. 3. there is no exception in the TIA Act that would permit the use of the interception warrant information for the purposes of performing a statutory duty imposed by law, such as considering an access application under the GIPA Act. Nor is there any exception that permits the "communication" of interception warrant information between staff members of the NSW Police Force for the purposes of considering an access application under the GIPA Act. 4. further, the respondent may not file the interception warrant information comprising items 1 and 4 with the Tribunal because this would involve "giv[ing] interception warrant information in evidence in a proceeding" in contravention of the prohibition in s 63(2)(d) of the TIA Act. While s 74(3) provides that a person may give interception warrant information in evidence in an "exempt proceeding", a proceeding in the Tribunal for administrative review of a decision made by the NSWPF under the GIPA Act is not an "exempt proceeding" within the meaning of s 5B.
The applicant made lengthy submissions on the operation of the TIA Act, referring in particular to the decisions of Kizon v Palmer (No. 1) (1997) 142 ALR 142 and Kizon v Palmer (No. 2) (1998) 82 FCR 310; [1998] FCA 312. The applicant emphasises that in Kizon No. 1 the Court stated that the affidavit required by s 42 of the TIA Act to accompany an application for a warrant was not "designated warrant information within the meaning of s 6EA of the TIA Act", but that the affidavit would necessarily contain designated warrant information.
The applicant further submits that there is a "significant temporal dimension" with regard to the operation of s 63(2). He submits that the affidavits are not interception warrant information and that the information they disclose became "interception warrant information" "known to all relevant parties" when the Brief of Evidence was served on the defence.
In Kizon No 1, the Full Court of the Federal Court answered questions on a stated case arising out of an order for the discovery of material which was placed before the person who issued, relevantly, a telephone intercept warrant under s 45 of the TIA Act. That material included the affidavits in support of the application for the warrant. The first respondent, being the Commissioner of the Australian Federal Police, who was ordered to give limited discovery, contended that the TIA Act prohibited him from complying with the order.
The Attorney submits that in Kizon No 1, the "designated warrant information" was disclosed to the applicant in unusual circumstances. After Northrop J had made an order that there be limited discovery of the affidavits in support of the warrant applications, the Commissioner of the Australian Federal Police filed a notice of motion seeking an order that the applicant was not entitled to inspect or call for the production of the documents on the ground of public interest immunity. In support of the motion, the Commissioner filed and served an "open" affidavit sworn by an Assistant Commissioner of the AFP, Mr Mills. That affidavit annexed edited versions of the five affidavits sworn in support of the applications for warrants (including, relevantly, the application for the telephone intercept warrant).
It was in those circumstances that Lindgren J concluded (at 510) that: In the present case, the designated warrant information is supposedly contained in the Mills open affidavit, its annexures or both. That affidavit and those annexures have been read by the applicant and were intended by the first respondent to be read by him. No purpose to which s 63 is directed would be served by construing the section as preventing the applicant from relying on the affidavit and its annexures. In my view, sub-s 63 (2), importing as it does the definition of "designated warrant information" in $ 6EA, is to be read down so that the descriptions of the acts in the paragraphs of the subsection do not catch those acts as they apply to designated warrant information already known to all relevant parties.
The Attorney submits, contrary to the applicant's submissions, that the interception warrant information captured by items 1 and 4 of the access application has not entered the public domain and is not "known to all relevant parties". The Attorney submits that, as a matter of course, affidavits in support of applications for telecommunications interception warrants are not given in evidence publicly in prosecutions.
The Attorney notes that the applicant confirms that he does not have access to the documents sought in items 1 and 4 of the access application. Accordingly, the interception warrant information contained in the affidavit remains interception warrant information within the meaning of s 6EA of the TIA Act, and, contrary to the applicant's submissions, the operation of s 63(2) is not "avoided" in the present ease.
The Attorney further submits that, as a result of the decision in Kizon No 1, it was ordered, by consent, that the order for discovery made by Northrop J be vacated. The applicant then requested that a subpoena be issued for access to the affidavits in support of the applications for the warrants. Beaumont J set aside that subpoena. Relevantly, his Honour expressed the view that neither discovery, nor the subpoena process, could be used in judicial review proceedings to circumvent the manifest intent of s 63(2) of the TIA Act that designated warrant information is not to be disclosed other than in the course of prescribed criminal proceedings.
The Attorney submits that it follows from that reasoning that where, as here, the interception warrant information has not been disclosed in the course of prescribed criminal proceedings, the prohibition in s 63(2) continues to apply.
The Attorney concludes his submissions by submitting that although the applicant is aware of the existence of a telecommunications interception warrant, a purposive construction of s 63(2) calls for the conclusion that the prohibition continues to apply in circumstances where the interception warrant information contained in the affidavit accompanying the application for that warrant has not entered the public domain and was not otherwise disclosed to the applicant in the course of the criminal proceedings.
I agree with and accept these submissions of the Attorney. I note that in Kizon No 2, the Full Court of the Federal Court upheld Beaumont J's decision. Northrop and Branson JJ (French J agreeing) relevantly endorsed the observations made by Lindgren J at 511 that the purpose of s 63(2) of the TIA Act is not only to protect privacy, but also to assist law enforcement: at 323-324. At 324-325, their Honours explained: Lindgren J spoke in Kizon v Palmer of the significance of designated warrant information being in the public domain as a consequence of having been given in evidence publicly in a prosecution. There is a real difference between the circumstance which his Honour so envisaged, and a circumstance in which a litigant, being the subscriber to a telecommunications service the subject of a warrant, seeks to obtain such information in a non-public way by being given access to documents produced.
I turn now to the question to what follows from these conclusions.
The Attorney submits that: 1. s 63(2) of the TIA Act prohibits "dealing in" interception warrant information in a way that is directly inconsistent with the processing and assessment of that information by an agency in response to an access application made under the GIPA Act; 2. when an agency reviews and processes the information for the purpose of applying the public interest test, it is "mak[ing] use of it and (in some cases) also "mak[ing] a record of' it in contravention of ss 63(2)(b)-(c); 3. if an agency were to decide - consistently with the presumption in favour of disclosure in s 5 of the GIPA Act - that the public interest weighed in favour of disclosing the information, it would by releasing the information to the applicant "communicate" interception warrant information "to another person" in contravention of s 63(2)(a); 4. it is not possible for an agency to fulfil its duties under the GIPA Act to process, assess and determine applications to access interception warrant information and also comply with the prohibition in s 63(2) of the TIA Act. As the Tribunal accepted in Ruyters at [64], for the purposes of s 63(1) "making use of encompasses reading and listening to intercepted information. In the same way, the term "making use of" in s 63(2) encompasses reading and (where relevant) listening to interception warrant information. In order to adequately engage in the balancing exercise required by s 13, the agency would need to examine the detail of the information to which access is sought (eg Ruyters at [65]) and in effect "make use of" the information; 5. this gives rise to a direct inconsistency within the meaning of s 109 of the Commonwealth Constitution because it is impossible to obey the two laws simultaneously: R v Licensing Court of Brisbane; Ex parte Daniell [1920] HCA 24; 6. in addition, by requiring an agency to consider an application for access to information it is prohibited from disclosing to the applicant, including by failing to include the TIA Act as an "overriding secrecy law" attracting a conclusive presumption against disclosure, the GIPA Act purports to "alter, impair or detract from" (essentially undermine) the prohibition in s 63(2) of the TIA Act. That is because s 63(2) prohibits the disclosure of interception warrant information irrespective of whether the information is subject to an overriding public interest against disclosure within the meaning of the GIPA Act. Further, to the extent that cl 6(1) of the Table in s 14 of the GIPA Act contemplates that information disclosure prohibitions in the TIA Act are to be treated simply as "factors" to be considered in the application of the public interest test, then s 109 of the Commonwealth Constitution is plainly engaged. In this regard, the Tribunal was wrong to conclude, in Ruyters at [68], that it is "only in circumstances where an agency finds that there is no overriding public interest consideration against disclosure that an access applicant must be provided with access to information."
Thus, the Attorney-General submits that: 1. s 109 of the Commonwealth Constitution operates to render ss 9(1), 58(1) and 72(1) of the GIPA Act inoperative to extent that they are inconsistent with s 63(2) of the TIA Act. This means that these provisions of the GIPA Act are inoperative insofar as they purport to apply to "government information" that is also "interception warrant information" within the meaning of s 6EA of the TIA Act; 2. because the GIPA Act is inoperative to the extent that it purports to require the processing, assessment and release of interception warrant information in contravention of s 63(2) of the TIA Act, the Commissioner did not have power to consider the merits of the access application with respect to items 1 and 4. Nor did the Commissioner have power to decide or determine that part of the access application by making a decision contemplated in s 58 of the GIPA Act. 3. when the Tribunal conducts an administrative review of a decision, it may exercise "all of the functions that are conferred or imposed by any relevant legislation" on the original decision-maker: ADR Act, s 63(2). In effect, the Tribunal "accedes to" the powers of the original decision-maker: see by analogy SZGME v Minister for Immigration and Citizenship (2008) FCAC 91; 168 FCR 487 at [301] and [361]. If, on a proper construction of the relevant legislation, a particular power was not available to the original decision-maker, it is not available to the Tribunal. 4. accordingly, just as the Commissioner did not have power to make a decision under the GIPA Act with respect to the interception warrant information, the Tribunal cannot now consider the correct and preferable decision with respect to the information sought in items 1 and 4 of the access application.
I accept these submissions, and no persuasive argument was made against them by the applicant.
My conclusion therefore is that, in relation to items 1 and 4, there should be a decision to take no action with respect to the information sought.

Items 2 and 3

Item 2 relates to a police officer's duty book entries. This is information about the confidential deliberations and methodology of NSWPF relating to a criminal investigation.
The information responsive to Item 2 contains the confidential deliberations and methodology employed by the NSWPF in conducting criminal investigations, including locating and identifying persons of interest, evidence and other relevant information. This methodology is confidential and not known to members of the public.
Item 3 relates to information received directly from the alleged victim of a sexual assault. The information was supplied to the NSWPF by a member of the public in the course of an investigation and to progress that investigation. The information is an internal NSWPF email containing a photograph attachment. This information was provided by that member of the public with an expectation of confidentiality.
The respondent submits, and I accept, having examined the open and confidential evidence, that the public interest considerations against disclosure which apply to both these Items are the matters set out in s 14 Table at cll 1(b), 1(f), 1(h), 3(a) and 3(b).
In addition, I accept that, having examined the open and confidential evidence, that the public interest considerations against disclosure which additionally apply to these Item 2 are the matters set out in s 14 Table at cll 1(d) and 1(g).

Conclusion - Where does the balance lie?

I am satisfied that all these matters in [68] and [69] should be given significant weight.
I am satisfied that the information not disclosed by the respondent constitutes information or an opinion about individuals other than the applicant, and that the information comprises criminal intelligence about those persons and their interaction with the NSW Police Force.
I accept that disclosure of the information not disclosed by the respondent could reasonably be expected to: 1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance: s 12(2)(a); 2. inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public: s 12(2)(b);
I have given significant weight to the public interest considerations against disclosure in item 3(a) of the Table. The personal information in the COPS Reports was gathered by police officers in the exercise of their investigative functions and, because of the circumstances in which it was gathered, it is personal and sensitive to each individual. I am therefore satisfied that disclosure of the information not disclosed could reasonably be expected to reveal personal information about those persons, and that cl 3(a) applies as a public interest factor against disclosure of the information.
Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70].
So far as the public interest considerations against disclosure are concerned, I am satisfied, particularly in light of the evidence provided by Inspector Harding and Detective Chief Inspector Watson that these public interest considerations against disclosure far outweigh those in favour of disclosure.
As noted above, the public interest considerations which have been identified in this matter are relevant and should be accorded weight. In general, they relate to the desirability of government information being accessible wherever appropriate.
However, in my view, the public interest considerations against disclosure of the information not disclosed outweighs the public interest considerations in favour of disclosure.
Given the above, in my view, the correct and preferable decision is to: 1. vary the respondent's decision of 31 May 2023 to reflect the further release of information on 18 December 2023 referred to in the updated schedule in respondent's Open Bundle at pp 27-29 of Tab 6A; 2. otherwise affirm the respondent's decision of 31 May 2023 on the basis that there is a conclusive and an overriding public interest against disclosure under s 58(1)(d) of the Government Information (Public Access) Act 2009 (NSW); and 3. otherwise dismiss the application for review.

Items 5, 6, 8 and 9

The information sought in these items is no longer pressed.

Conclusion

For the above reasons the Tribunal orders that: 1. The Tribunal extends the time for the filing of the application to 22 August 2023. 2. The Tribunal cannot make any determination or decision under the GIPA Act in relation to items 1 and 4. 3. The correct and preferable decision is to: 1. vary the respondent's decision of 31 May 2023 to reflect the further release of information on 18 December 2023, referred to in the updated schedule in respondent's Open Bundle at pp 27-29 of Tab 6A; 2. otherwise affirm the respondent's decision of 31 May 2023 on the basis that there is a conclusive and an overriding public interest against disclosure under s 58(1)(d) of the Government Information (Public Access) Act 2009 (NSW); and 3. otherwise dismiss the application for review. 1. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the confidential material filed by the respondent or matters contained in this material is prohibited. 2. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the confidential material or matters contained in this material is restricted to the respondent and the Tribunal.

Endnote

(a term which is not defined, but ordinarily means "to employ for some purpose": see the definition of "use" in te Macquarie Online Dictionary, noting that in Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 the Federal Court used the terms "make use of" and "use" in the context of the TIA Act interchangeably and, in Ruyters v Commissioner of Police [2021] NSWCATAD 41 at [61], the Tribunal decided that the terms "make use of" and "use" should be given their ordinary meaning). 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 23 August 2024 - Amended Representation for intervenor 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: 23 August 2024

Police Regulation 2015(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (12)