Higgins v Commissioner of Police, NSW Police Force [2026] NSWCATAP 105;

"There is no onus on an access applicant to show that there are reasonable grounds for his or her belief that requested information (or further information) exists. Any reference to a 'practical onus' on the access applicant to establish that there are reasonable grounds to believe that requested information (or further information) is held, is apt to mislead. The legal onus (and burden) remains at all times on the agency to justify its decision (that the agency does not hold the requested information) under s 105 of the GIPA Act (see eg Amos v Central Coast Council [2018] NSWCATAD 101 at [39]; Wojciechowska at [35])."

1. In both of these cases, s 105 of the GIPA Act operated to require the agency to justify its decision that information the subject of an applicant's access application was not held by it. That may be distinguished from the present situation where Mr Higgins is contending that s 105 of the GIPA Act requires the Commissioner to prove that an inference Mr Higgins is asking the Tribunal to draw from established facts is factually incorrect. The Commissioner's obligation to justify his decision does not extend to an obligation to provide evidence to disprove an applicant's allegation that disclosure of information could reasonably be expected to establish that an officer acted unlawfully.
2. If we are wrong about this, and the respondent's onus extends to disproving the existence of any putative fact or circumstance said to amount to a public interest consideration in favour of disclosure, or does so in the circumstances of this case, we consider that the respondent discharged that onus. The Commissioner persuaded the Tribunal not to accept as a "fact" the proposed public interest consideration put forward by Mr Higgins. Although phrased in terms of reasonable expectation, in circumstances where the information in question was before the Tribunal, Mr Higgins' allegation was, in substance, that a police officer had or probably had acted unlawfully in the course of his duties. As Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."

1. The Tribunal quite properly exercised caution when deciding whether to accept Mr Higgins' contention of a reasonable expectation that the information would reveal unlawful conduct, where Mr Higgins had not identified how the relevant conduct breached the law. The Tribunal was not required to draw an inference, from the evidence, that the police officer's conduct was unlawful (or that it could be reasonably be expected that the video would show it to be unlawful) by reason of the respondent's onus (Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419, Hope and Glass JJA at 425-426). It was not necessary, in these circumstances, for the respondent to positively prove that the conduct was lawful, before the Tribunal could properly be satisfied that it should not take into account the public interest consideration in the way the applicant had formulated it.
2. For these reasons, the answer to the first question is "no." The Tribunal did not fail to apply section 105 of the GIPA Act correctly.

Second question - Did the Tribunal misapply the rules of procedural fairness?

1. The second question also lacks the precision which is desirable when identifying a question of law, in that it does not ask whether the Tribunal misapplied the rules of procedural fairness in a particular way.
2. The Tribunal's alleged error, as identified in the appellant's submissions, is that the "Tribunal erred in law by holding that it would be a breach of procedural fairness to the Commissioner for the Tribunal to find that [body-worn video] could be reasonably expected to reveal unlawful conduct" (written submissions filed on 28 November 2025 at [44]). We consider that the relevant question of law, when identified with precision in light of the appellant's submissions, is whether the Tribunal erred by holding that it would be procedurally unfair to find that the information from the body-worn video could reasonably be expected to reveal unlawful conduct.
3. We are satisfied that the appellant's second ground raises a question of law and that his appeal on that ground is an appeal "on a question of law." An alleged denial of procedural fairness raises a question of law (Donohoe v Albulario [2025] NSWSC 9 at [39]).
4. The question of law, and the ground, are premised upon the assumption that the Tribunal found that it would be procedurally unfair for it to conclude that the information from the body-worn video could reasonably be expected to reveal unlawful conduct. That is not quite what the Tribunal said. The relevant paragraph in the Tribunal's decision, [53], is as follows:

"It may hypothetically be open for the Tribunal to examine the facts before it and itself come to a conclusion that the evidence could reasonably be expected to reveal or substantiate that the police officer in question had engaged in unlawful conduct. Such a conclusion would require consideration of the statutory scheme and other relevant law governing the enforcement of road safety and the applicable principles under the law of torts. However, it is not for the Tribunal to undertake such an enquiry on its own volition. Doing so and coming to its conclusions without submissions from the parties will fail the requirements of procedural fairness."

1. The Tribunal's comment that that it was not for it to undertake an enquiry into the legislative scheme of its own motion, for the purpose of making a finding that the information in question could be expected to reveal that the police officer's conduct was unlawful, was unexceptional. That was not simply a matter of procedural fairness. It is not desirable for the Tribunal to embark on its own inquiry without assistance from the parties, because it would then do so without the benefit of argument on the question (Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch [2024] NSWCA 24 at [84]). It is not the Tribunal's role to do so when considering whether a proposed public interest consideration in favour of disclosure is properly characterised as such.
2. Secondly, any adverse conclusion reached by the Tribunal on the basis of those inquiries could have constituted a breach of procedural fairness, as the Tribunal stated. For example, it would probably have been a denial of procedural fairness for the Tribunal to conclude that it could reasonably be expected that the information would reveal that the officer had breached a particular statutory provision, without giving the respondent (and possibly the officer) an opportunity to be heard on that proposed finding.
3. There is another reason why it was appropriate for the Tribunal to decline to undertake its own analysis of the relevant statutory provisions with a view to deciding whether the police officer's conduct was unlawful. That is because it would then have been conducting a collateral inquiry.
4. In Crewdson v Central Sydney Area Health Service [2002] NSWCA 345, the appellant had applied to amend a government record containing his personal information under the former Freedom of Information Act 1989 on the basis that it was "incorrect, out-of-date or misleading." Handley JA (with whom Ipp and Davies AJJA agreed) found, as a matter of fact, that it was none of those things. His Honour continued (at [24]):

"The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them."

1. This Tribunal has since observed on a number of occasions, citing Crewdson, that proceedings under the GIPA Act should not be used "as a vehicle for the collateral review of the merits or validity of official action" (Katsifis v Canterbury Bankstown Council [2026] NSWCATAD 67 at [93]; Burke v Health Education and Training Institute [2016] NSWCATAD 194 at [45]; McNeill v Clarence Valley Council [2024] NSWCATAD 382 at [44]; Turner v Secretary, Department of Education [2024] NSWCATAD 236 at [46]).
2. In the absence of any specific basis being advanced on which the police conduct could be said to be unlawful, it was (at least) open to the Tribunal to decline to conduct its own investigation into the lawfulness of that conduct. The key question for the Tribunal was whether there was an overriding public interest against disclosure of the information in the way requested by the applicant. To decide that question, it had to consider, broadly, whether there was a public interest in favour of disclosing information which could give rise to public debate about police conduct, in addition to the general public interest in favour of the disclosure of government information. It properly did that without conduct an inquiry into the lawfulness of the police officer's conduct.
3. For these reasons, the answer to the question "Did the Tribunal misapply the rules of procedural fairness?" is "no."

Third question - whether Tribunal failed to consider relevant evidence and wrongly concluded it could not draw a Jones v Dunkel inference

1. The appellant's third ground raises two questions which are said, by the appellant, to be questions of law. The first is whether the Tribunal failed to have regard to the evidence of the lawfulness, or otherwise, of the police officer's direction. The second is whether the Tribunal erred in failing to draw a Jones v Dunkel inference against the Commissioner, being that the police officer's conduct was unlawful (or similar), in circumstances where he did not call relevant evidence.

Did the Tribunal fail to have regard to relevant evidence?

1. The first question is not, in our view, a question of law. It concerns, in substance, the weight to be given to the evidence and a failure to refer to evidence.
2. Mr Higgins submitted in support of this sub-ground that the Tribunal failed to have regard to the evidence that:

(1) It was not necessary for the police officer to direct the applicant to drive to a particular town to secure a compliant child seat, as he sourced once elsewhere, in the opposite direction;

(2) The police officer did not believe that it was necessary to direct him to drive to the town to secure a compliant child seat;

(3) The presence of the appellant and his family in the rest area where they had been stopped did not constitute a safety risk;

(4) There was no risk that the appellant would breach the law other than driving in accordance with the police direction.

1. None of that evidence is directly relevant in circumstances where the appellant had not identified any statutory provisions which depended upon the police officer's belief, or upon any factual matters. The Tribunal was not legally bound to refer to that evidence.
2. We have decided not to grant leave to appeal in relation to this ground (or sub-ground) because the appellant has not demonstrated that it raises an issue of principle, a question of public importance, an injustice which is reasonably clear and has not established any other basis on which leave should be granted (see Collins v Urban [2014] NSWCATAP 17 at [84]).

Did the Tribunal err in failing to draw a Jones v Dunkel inference against the respondent?

1. The second part of the ground is whether the Tribunal erred in failing to draw a Jones v Dunkel inference against the respondent when invited to do so by the appellant. As indicated above, the "rule" in Jones v Dunkel is that the unexplained failure by a party to call a witness or give evidence may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case.
2. The failure to draw a Jones v Dunkel inference does not raise a question of law (Amaca Pty Ltd v Cleary [2022] NSWCA 151 at [48]). Accordingly, Mr Higgins may not appeal as of right on this ground.
3. We have considered whether to grant leave to appeal on this ground.
4. The Tribunal dealt with the Jones v Dunkel submission as follows (at [45]):

"The Applicant, for his part, says that the Respondent neither gave evidence nor disclosed any policies or procedures that would suggest that the police officer's directions or assistance had a lawful basis. In the absence of such evidence, the Applicant says that the Tribunal should draw an inference that any such evidence would have been unhelpful to the Respondent ..."

"I do not think that I can infer that the conduct in question was unlawful merely by reason of the absence of submissions from either party setting out particulars of the legal scheme governing road safety and their application to the facts of the case. This would require ignoring the Respondent's categorical submission that no breach of law has occurred."

1. The inference which the appellant says the Tribunal should have drawn is that any evidence called by the Commissioner would not have assisted the Commissioner.
2. The appellant has not identified any error on the part of the Tribunal.
3. First, as an administrative decision-maker which is not bound by the rules of evidence, the Tribunal is probably not required to comply with or apply the principle in Jones v Dunkel (see Howes v Comcare [2016] FCA 1521 at [68]; Leach v Comcare (2021) 173 ALD 510; [2021] FCAFC 134 at [90]).
4. Secondly, even if the principle is generally applicable to the Tribunal when reviewing decisions under the GIPA Act, it did not require the Tribunal to draw any inference in this case.
5. There is no requirement to draw an inference that a party's evidence would not have assisted the party's case where there is an unexplained failure by the party to give evidence, call witnesses or tender documents (Newell v De Costi Seafoods (Franchises) Pty Ltd [2018] NSWCA 49 at [80]; Amaca Pty Ltd v Cleary [2022] NSWCA 151 at [48]).
6. The circumstances were not, in any event, circumstances in which it would have been appropriate to draw an inference that the Commissioner's evidence as to the lawfulness of the police officer's conduct would not have assisted the Commissioner. The Tribunal had before it sufficient evidence for the purpose of determining whether it could be reasonably expected that the body-worn video would reveal unlawful conduct. As it observed, the main reason it was not persuaded that such a reasonable expectation arose was the absence of submissions about the "legal scheme governing road safety" (at [49]).
7. Mr Higgins submitted that the Commissioner should have provided the Tribunal with policies and procedures relevant to the police officer's conduct (see Higgins v Commissioner of Police, New South Wales Police Force [2025] NSWCATAD 223 at [45]). Such policies and procedures would not establish whether or not the police officer's direction to Mr Higgins was unlawful. The answer to that question would depend upon the statutory scheme and, possibly, the common law.
8. For these reasons, we have decided not to grant leave to appeal on Mr Higgins' third ground. The ground does not raise an issue of principle, a question of public importance, or identify an injustice which is reasonably clear. Mr Higgins has not identified any other basis on which leave should be granted (Collins v Urban [2014] NSWCATAP 17 at [84]).

1. For the reasons given above, we are not satisfied that Mr Higgins has identified any errors in the Tribunal's decision. We have accordingly decided to dismiss the appeal.

(1) To the extent necessary, leave to appeal on Ground 1 is granted.

(2) Leave to appeal on Ground 3 is refused.

(3) Appeal dismissed.

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.