Himo v Commissioner of Police

Relevant legislation

1. Section 58 of the ADR Act obliges the Respondent to file, amongst other things, a copy of every document that is in the possession or under its control, that it considers relevant to the determination of the application by the Tribunal.
2. There is express provision, in the Firearms Act 1996 (FA Act) for evidence to be withheld from an Applicant and from the public; s 75(5)(a) provides that the Tribunal "is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in s 11(5A) or 29(3A)". Section 75(5)(b) provides relevantly, that, "in order to prevent the disclosure of any such report or other information," the Tribunal "is to receive evidence in the absence of the public, the applicant for the administrative review and the applicant's representative." The Respondent, however, did not rely upon s 75(5) of the FA Act in respect of the present application; relying instead upon s 64(1) of the CAT Act, which provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings....
3. Section 59 of the ADR Act gives the Tribunal the power to direct that an administrator not be required to lodge certain documents as would otherwise be required by s 58 of that Act: 59 Objections to lodgement (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58. (2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if: (a) ... or (b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.

The evidence

1. In support of the Application in these preliminary proceedings, the Commissioner relied on the Senior Constable Bradley Duke, dated 21 June 2021. SCON Duke has been a police officer for 12 years and is currently a licensing constable.
2. Based on his experience, SCON Duke's evidence was to the effect that disclosure of any of the Confidential Material would or could: 1. Contain information that woold alert the Applicant to sensitive information that Police have gathered about him and his associates 2. Contain personal information about third parties 3. Contain specific information, the disclosure of which could identify confidential sources of information to law enforcement and place identified persons at risk of harm 4. Reveal Police methodology
3. The Respondent also relied on SCON Duke Confidential Statement. I do not propose to discuss any material that was presented on a confidential basis in open Reasons. Those parts of the Reasons that are not to be disclosed are identified as "[not for publication]': s 64 of CAT Act.
4. [NOT FOR PUBLICATION]

Consideration

1. I am mindful of the discretionary nature of s 64 of the CAT Act and that the question is whether the circumstances are sufficient for the exercise of the Tribunal's discretion. Section 64 itself does not provide guidance as to how that discretion should be exercised. There are fundamental principles of open justice and procedural fairness: see for example Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66, citing Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247. In Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [26], the Tribunal stated that the starting point in deciding whether an order under s 64(1) of the CAT Act should be made is the presumption set out in s 49 that proceedings are to be conducted in public, so that, in accordance with the rules of procedural fairness, a party knows the case it has to meet.
2. In its consideration of whether to make an order under s 59 of the ADR Act or s 64 of the CAT Act, the Tribunal must turn its mind to whether it would be appropriate to make an order prohibiting disclosure of the documents because of "the confidential nature" of those documents or, more broadly, "for any other reason": see Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41 at [3]. Section 64(1) of the CAT Act implicitly permits a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant) at [24].
3. The principles relevant to making confidentiality orders of the type sought by the Commissioner were recently summarised recently by the Tribunal in Grant at [19]-[20]: 19. The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (NCAT Act, s 38(2)). Section 64(1) (d) provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." The word "desirable " should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)). 20. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d): Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.
4. In CYL v YZA [2017] NSWCATAP 105 which was referred to in Grant, the Appeal Panel, said at [102] held that the Tribunal's power to make suppression orders is less constrained than the position at common law. The Appeal Panel adopted the reasoning in Dezfouli (which had examined comparable provisions in the Administrative Decisions Tribunal Act 1977). In Dezfouli, the Appeal Panel stated as follows at [50]-[53] and [81]-[82]: 50. Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT [Administrative Appeals Tribunal] Act), three elements of prime importance are the word 'desirable', the phrase for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any ... reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion. 51. There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is 'really necessary to secure the proper administration of justice in proceedings before it'. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act. 52. In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person - most commonly a witness - involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym. 53 In such cases, the courts have applied a criterion of 'necessity', such as that stated by McHugh J A. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally - i.e., in future proceedings as well as in the proceedings currently being heard. … 81. It is difficult if not impossible to set out in short form all the matters that, according to the case law ..., should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an Applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 82. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.
5. I consider that SCON Duke's evidence is sufficient to satisfy me that the circumstances at hand are sufficiently "special" so as to justify the making of confidentiality orders sought by the Commissioner, for the following reasons.
6. Firstly, there is significant public interest in protecting police investigative techniques: see for example Brennan v State of New South Wales [2006] NSWSC 167 at [44]. Not every aspect of Police investigations finds its way into a criminal trial. As I have previously observed, the understanding of the public as to Police methodologies is probably largely informed by popular television programs where even the most serious of cases can be solved within an hour: see Zreika v Commissioner of Police [2020] NSWCATAD 202 (Zreika).
7. [NOT FOR PUBLICATION]
8. Secondly, there can be no doubt that there is a significant public interest in protecting the confidentiality of Police sources and not disclosing information concerning informants: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270, at [69].
9. [NOT FOR PUBLICATION]
10. Thirdly, as can be observed from the redacted material supplied in the s 58 documents, some of the information relates to the personal information of third parties.
11. [NOT FOR PUBLICATION]

Conclusion

1. SCON Duke's evidence and the Respondent's submissions make a cogent case for the grant of confidentiality and I make the Orders, as asked.

ORDERS 1. Pursuant to s 59 of the ADR Act, the Respondent (the Commissioner) not be required to lodge copies of the documents (the Confidential Material) specified in the Confidential Statement provided in support of the application and provided to the Tribunal in accordance with the order of the Tribunal (the Confidential Statement); 2. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and the Confidential Statement or matters contained in the Confidential Material and the Confidential Statement is prohibited; 3. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and the Confidential Statement or matters contained in the Confidential Material and the Confidential Statement is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal.

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: 09 July 2021