Holmes v Commissioner of Police, NSW Police Force

Section 59 of the ADR Act

1. Section 59 of the ADR Act relevantly provides as follows: 59 Objections to lodgment (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) … (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.
2. Section 58 of the ADR requires the administrator, whose decision is the subject of an application for review to the Tribunal, to lodge with the Tribunal, within 28 days after receiving notice of the application, material documents as follows: 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. … (5) The principal registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. … (7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following: (a) an order made under section 59 (Objections to lodgment), (b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, (c) section 66 (Effect of Government Information (Public Access) Act 2009) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act). (8) For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access.
3. In Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAD 227, at [30] to [33], Senior Member, Dr Lucy, provided the following summary of the application of s 59: 30 Section 58(1)(b) of the Administrative Decisions Review Act requires an administrator to lodge documents with the Tribunal which the administrator considers to be relevant to the determination of the application for review by the Tribunal. That provision does not require the administrator to provide those documents to an applicant. In most administrative review proceedings, the Tribunal makes directions requiring documents lodged under s 58(1)(b) of the Administrative Decisions Review Act to be provided to the applicant. That is generally required, as a matter of procedural fairness. However, there may be circumstances where such a direction is not appropriate. 31 The administrator's obligation to lodge relevant documents within 28 days applies by operation of statute, irrespective of whether the Tribunal has directed the administrator to lodge such documents. The only way in which the administrator may be relieved of that obligation is by way of an application under s 59 of the Administrative Decisions Review Act. 32 The effect of an order under s 59 of the Administrative Decisions Review Act is that the administrator is not required to lodge the document or documents the subject of the order with the Tribunal at all. The effect of a s 59 order is similar, in this respect, to an order which a court might make following a successful public immunity claim. The effect of the order is not that the Tribunal and the respondent have access to the relevant documents in the substantive proceedings, but the applicant does not; the effect is that the document is not available for the Tribunal's consideration at all. 33 In circumstances where an administrator wishes to lodge a document confidentially, such that the Tribunal and the administrator have access to the document but the applicant does not, the proper course is to seek a non-disclosure order in respect of that document under s 64(1)(d) of the NCAT Act.
4. In this case, the respondent expressly seeks an order under s 59 to be excused from lodging with the Tribunal, as required under s 58 of the ADR Act, an unredacted copy of the confidential documents containing the confidential material. At the same time, the respondent also seeks an order under s 64(1)(d) of the NCAT Act that disclosure of the unredacted copy of the confidential documents containing the confidential material, the confidential affidavit and the matters contained in the unredacted copy of the confidential documents and confidential affidavit be restricted to the respondent and her legal representatives and the Tribunal. That is, even if I were to make the order sought under s 59 of the ADR Act, the proposed order under s 64(1)(d) of the NCAT Act, makes provision for the disclosure of the unredacted copy of the confidential documents and confidential affidavit to be placed before the Tribunal at the substantive hearing of the applicant's review application.
5. In my opinion, on its proper construction, where an order is made under s 59 of the ADR Act, that order does no more than excuse the respondent administrator from complying, in part, with his/her obligation, under s 58(1)(c) of the ADR Act, to lodge with the Tribunal a copy of all the documents that the respondent administrator considers to be relevant to the determination of the applicant's review application. And while the s 59 order means that the document the subject of the order is not before the Tribunal at the time the respondent administrator lodges his/her s 58 documents, in my opinion, this does not mean that the document is therefore excluded from consideration by the Tribunal as indicated above. That is, in my opinion, s 59 of the ADR Act does not operate so as to prevent the respondent administrator from seeking to tender that document for consideration by the Tribunal, in support of his/her case at the substantive hearing of the applicant's review application. It will then be a matter for the Tribunal hearing and determining the substantive application of the applicant as to whether it will accept that tender and if accepted what weight is to be given to it.
6. However, to avoid a further hearing along the lines of a s 59 application and to preserve the confidentiality of the document that was the subject of a s 59 order and the confidential evidence provided by the administrator in support of the s 59 order, any such proposed tender, in my opinion, does require appropriate orders being made, under s 64 of the ADT Act, at the time the s 59 order is made.

Matters in issue

1. There is no dispute that the confidential material in the unredacted confidential documents the subject of this application relates to the applicant.
2. The applicant has been provided with a redacted copy of the confidential documents which clearly identify the specific redactions within these documents that are the subject of this s 59 application. These redactions are very limited.
3. It should be noted that, to the extent the documents provided to the applicant contain other redactions, these redactions are not subject to this s 59 application and any issues the applicant may have in regard to those redactions will need to be raised with the Tribunal at the hearing of his substantive review application.
4. The applicant opposes the orders sought by the respondent in this application.
5. The matters in issue in this s 59 application are as follows: 1. was the respondent's application brought within 28 days of being notified of the applicant's review application? If not, has an extension of time been sought and granted? 2. do the confidential documents contain confidential material for which it would be appropriate to make an order under s 64 of the NCAT Act prohibiting or restricting the publication or disclosure of evidence of the confidential material? 3. is it appropriate to make an order under s 59 of the ADR Act that the respondent is not required to provide to the Tribunal an unredacted copy of the confidential documents that contains? and 4. if an order is made under s 59, what if any further orders should be made?

Material before the Tribunal

1. In support of her application the respondent relied on: 1. an open witness statement of Senior Constable Mark McAlister dated 15 December 2023 and written submissions that were filed on 15 December 2023; and 2. a confidential witness statement and an unredacted copy of the confidential documents the subject of this application. The confidential statement and the unredacted copy of the confidential documents containing the confidential material were provided to the Tribunal in confidence.
2. The applicant objected to the orders sought and relied on the following material: 1. the statement he made on 19 January 2024 and his earlier affidavit of 8 February 2021; 2. the statements of his father made on 18 January 2024 and 28 February 2021; 3. the statements of his mother made on 18 January 2024 and 28 February 2021; and 4. his written submissions of 22 January 2024 and his written submissions of February 2021.
3. At the open hearing on 22 January 2024, Senior Constable Mark McAlister was made available for cross-examination, by the applicant.
4. As I have already noted, the hearing on 22 January 2024, was conducted, in part, in the absence of the applicant, any legal representative for the applicant and the public under s 49(2)(b) of the NCAT Act.

Was the respondent's application made within time?

1. As noted above, the respondent was required to make her s 59 application within 28 days of receipt of the applicant's review application: see ADR Act ss 59(1) and 58(1).
2. I note that, the applicant's review application first came before the Tribunal, at a directions hearing, on 31 October 2023. On this day, the Tribunal made the following orders: 1 The time for David Andrew Holmes to lodge the application is extended to 06 October 2023. 2 Commissioner of Police, NSW Police Force is to give to the Tribunal and all other parties the following material: documents under s 58 of the Administrative Decisions Review Act 1997 on or before 24 November 2023. 3 Commissioner of Police, NSW Police Force is to provide to the Tribunal and the applicant any application for order under s59 of the Administrative Decisions Act 1997 and s64 of the Civil and Administrative Tribunal Act 2013 (the s59 Application), by 24 November 2023. 4 …
3. Orders were also made for the filing and serving of evidence and submissions regarding the respondent's s 59 application and that application was listed for hearing in December 2023.
4. As noted above, the respondent lodged her s 59 application on 29 November 2023, which was just over seven weeks after the applicant had lodged his administrative review application on 6 October 2023. However, as noted above, that application was lodged out-side the time prescribed in rule 24(3)(b) and 4(a) of the Civil and Administrative Tribunal Rules 2014. Hence, the Tribunal's jurisdiction to hear and determine the applicant's review application did not arise until 31 October 2023, when the Tribunal made an order extending the time within which the applicant was to lodge his review application: NCAT Act s 41. Hence, if the respondent's obligation to comply with s 58 of the ADR Act did not arise until 31 October 2023.
5. I note that the Tribunal's order that the respondent provide its s 59 application by 24 November 2023, fell within the 28 days prescribed in s 58(1) of the ADR Act. However, the respondent did not file her s 59 application until 29 November, which arguably falls just outside the prescribed time.
6. Neither the respondent, nor the applicant have raised this as an issue. On the contrary, the respondent's application has proceeded on the basis that it was lodged within time. Furthermore, on 12 December 2023, the Tribunal made orders, by consent, extending the time within which the respondent was to file and serve her evidence in support of her s 59 application. Time was also extended for the applicant to provide any evidence or submissions concerning the s 59 application and the hearing of the December 2023 was vacated and the new date of 22 January 2024 was agreed to.
7. In my view, for abundant caution, it is appropriate for the Tribunal, of its own motion to make an order, under s 41(1) of the NCAT Act, extending the time within which the respondent is to make her s 59 application to 29 November 2023, because: 1. the directions relating to the respondent's s 59 application and its progress were made by consent, 2. the respondent's delay, if any, in lodging the s 59 application is minimal; 3. the applicant has been provided with the respondent's open evidence and submissions and given ample time to respond to the evidence and submission of the respondent; 4. the application was heard on 22 January 2024, where the applicant did cross-examine Senior Constable McAlister on his open evidence and provide oral submissions. The applicant was also provided with the opportunity to provide further written submissions after the hearing; and 5. for the reasons set out below, on the material before the Tribunal the respondent has established that it is appropriate to make the orders sought.
8. Accordingly, for abundant caution, I make an order extending the time within which the respondent is to lodge her s 59 application to 29 November 2023.

Do the confidential documents contain confidential material for which it would be appropriate to make an order under s 64 of the NCAT Act?

1. In his open statement, Senior Constable McAlister explained that the unredacted confidential documents containing the confidential material the subject of this application, are held on the respondent's Computerised Operational Policing System (COPS). That System is an electronic database adopted by the NSW Police Force, in 1994. It is a record-keeping system that captures, records, and stores operational information and intelligence on an organisation-wide basis. It is a secure and confidential database that can only be accessed by law enforcement personnel with appropriate security clearance.
2. The system consists of several sub-database systems, including an Events sub-database system and Intelligence sub-database system that are used to identify, assess, and evaluate the law enforcement environment.
3. Senior Constable McAlister explained that the Events sub-database system is the primary system used by the NSW Police Force. Information is entered into this system by creating an Event Report entry that records, among other things, information about interactions police officers have with members of the public, events, or incidents that police officers have attended, and observations police officers have made about them.
4. The Intelligence sub-database system is used to create, update, and enquire on all information that is specifically linked to an Information Report. An Information Report is based on something that was observed or that was reported to the NSW Police Force by a member of the public. Senior Constable McAlister went on to say that, for security reasons, when information is entered into the intelligence sub-database system, police officers do not generally disclose the identity or source of the criminal intelligence. Nevertheless, where the intelligence information is specific or is only known by a small group of individuals, disclosure of any part of the information may tend to identify the source of the information.
5. Senior Constable McAlister went on to explain that the NSW Police Force, like all law enforcement agencies, rely heavily on the assistance from persons who provide information on a confidential basis which is widely regarded as a very important and useful form of intelligence. He said that, in law enforcement, the terms 'informant', 'registered source' and 'human source' are a reference to an individual who agrees (formally or informally) to covertly provide information to law enforcement to assist in the investigation, apprehension or prosecution of suspected offenders.
6. Based on his 18 years' experience as a member of the NSW Police Force, Senior Constable McAlister said he was aware that if the identity of an individual who has provided confidential information is disclosed, or the individual is suspected (rightly or wrongly) of being a confidential source of information, harm may be caused to the human source of information of this kind. Hence, if the NSW Police Force is unable to guarantee the security of the identity of human sources or the origin of information of this kind, there is a very real risk that individuals formerly prepared to give information of this kind may be deterred from doing so. This would have the potential to compromise the NSW Police Force's ability to investigate crime.
7. Senior Constable McAlister said that he had reviewed the confidential material the subject of this application, which he said: 'comprises confidential criminal intelligence held by the Commissioner which is relevant to the applicant'. He went on to say, based on his experience as a police officer and his knowledge of the applicant and his associates, and given the content of the confidential information, a disclosure of any of that information would or could: 1. identify confidential sources of information to law enforcement, or 2. cause harm to identified persons; or 3. discourage identified persons or the public generally from providing confidential information to the police in future.
8. In his written submissions, the applicant contends that the claims made in the statement of Senior Constable McAlister are extraordinary, especially as there is no evidence of him being a gangster, a terrorist, or involved in a serious or violent crime. He also asserts that the information, that was entered into the COPS database relating to him, does not genuinely relate to a breach, or suspected breach of the law, or an ongoing criminal investigation.
9. In his oral submissions, the applicant submitted that the evidence of Senior Constable McAlister should not be accepted as the statement he made was not in his own words - nor could be regarded as an expert witness.
10. While I understand the position taken by the applicant, in my opinion, the evidence of Senior Constable McAlister about the COPS database and how it is used and accessed is uncontroversial. That law enforcement agencies, including the NSW Police Force, rely heavily on information provided by members of the public to fulfill its statutory functions is well accepted. It is also accepted that information of this kind is generally provided on the understanding that it will not be disclosed, unless the person providing the information agrees, or a disclosure is otherwise compelled by law.
11. In this case, having viewed the confidential material in issue, I find that the evidence of Senior Constable McAlister, regarding the confidential material in the unredacted confidential documents the subject of this application should be accepted. He has been a police officer for 18 years and well experienced, including the use of the respondent's COPS database and the likely effect of a disclosure from that database of material of the kind that is the confidential material in this application.
12. Having accepted the evidence of Senior Constable McAlister the question is whether, if an application were to be made in regard to the confidential material, would it be appropriate to make an order under s 64 of the NCAT Act restricting the publication or disclosure of evidence of this material in the applicant's substantive review application.
13. As pointed out by the applicant, at [130], in Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27, Senior Member Dr Lucy provided a summary of the principles that emerged from the statutory provisions she had reviewed that authorised the Tribunal to make an order 'prohibiting or restricting' the disclosure, to a party, of evidence or the contents of a document. Those principles, to the extent that they are relevant to this application of the respondent are: (1) …; (2) The legislature has not evinced an intention to displace the rules of procedural fairness in the Administrative Decisions Review Act; (3) The Tribunal is ordinarily bound by the rules of procedural fairness; (4) The Tribunal may make orders prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence or the contents of a document lodged with the Tribunal, if it 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; (5) Such orders modify the rules of procedural fairness which would otherwise apply; (6) The power to make such orders is to be exercised sparingly and the making of an order denying a party procedural fairness is a grave step, not to be taken lightly; (7) Subsection 64(1) of the NCAT Act, and the question of what is "desirable" under that provision, is to be applied bearing in mind the principle of open justice and the rules of procedural fairness; (8) A decision as to whether to make an order under s 64(1)(d) of the NCAT Act and, if so, what order to make, should be made having regard to the principle that a party should have as full a degree of appropriate disclosure as is consistent with adequate protection of any confidential information; (9) The power to prohibit or restrict the disclosure of evidence to a party is to be exercised, albeit sparingly, for the purpose of securing to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve; (10) It may be relevant, when determining an application under s 64(1) of the NCAT Act in administrative review proceedings under the Firearms Act, that it is an underlying principle of that Act that "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety"; (11) The basis upon which an order under s 64(1)(d) of the NCAT Act is sought, and the public interest (if any) such an order is said to serve, form part of the circumstances of the case which are relevant to determining whether to make the order and, if so, what order to make.
14. These principles, I note, were set out in the context of a non-publication order sought by the respondent regarding confidential material that was before the Tribunal at the hearing of Mr Pendrick's substantive review application. In this application, the respondent is seeking to obtain an order which, if made, will mean that the unredacted confidential documents containing the confidential material will not be included in the s 58 documents it is required to lodge with the Tribunal. Nevertheless, I accept that the abovementioned principles apply. However, as noted by Senior Member Dr Lucy at [129]: The question of whether to make an order and, if so, what order to make, will depend at least in part upon the basis upon which the order is sought and the public interest (if any) if it said to serve.
15. In this case, as I have already noted, the question is whether, in determining whether an order should be made under s 59 of the ADR Act, it would be appropriate to make an order under s 64 of the NCAT Act restricting the publication or disclosure of evidence of this material if such an application were to be made.
16. It is accepted that the confidential material the subject of this application relates to the applicant and is material the respondent considers to be relevant to the determination of the applicant's substantive review application. However, based the open and confidential evidence, I have found that the confidential material is also 'confidential criminal intelligence' material and that a disclosure of this material could or would identify confidential sources of information to law enforcement, cause harm to identified persons, or discourage identified persons or the public generally from providing confidential information to the police in future. As explained by Senior Constable McAlister in his open evidence, the NSW Police Force relies on receiving confidential sources of information so that it can fulfill its statutory functions. Hence, there is a strong public interest for information of this kind not to be disclosed. In my opinion, I am satisfied, on the material before the Tribunal in this application, that the confidential material the subject of this application falls within this category and it would be appropriate to make non-publication and non-disclosure orders regarding the confidential material under s 64 of the NCAT Act.

Is it appropriate to make an order under s 59 of the ADR Act

1. Based on my findings above, I consider that it is appropriate to make an order, under s 59 of the ADR Act, that the respondent is not required to lodge an unredacted copy of the confidential documents that contain the confidential material the subject of this application.
2. As I have noted above, my findings do not extend to any other redactions the respondent may have made to the documents provided by the respondent in compliance with s 58(1)(c) of the ADR Act, a copy of which have been provided to the applicant.

What further orders, if any should be made?

1. In her s 59 application, the respondent sought a number of orders under s 64 of the NCAT Act, prohibiting and restricting the publication and disclosure of the evidence given during the private hearing on 22 January 2024, the unredacted confidential documents containing the confidential material and the confidential affidavit the respondent provided to the Tribunal in this application, and the matters contained in the confidential documents and confidential affidavit. The respondent also sought an order prohibiting the publication and reporting of the 'hearing' of the s 59 application, including any evidence given during the hearing.
2. For the reasons I have given above, in my opinion, it is appropriate to make the orders sought under s 64 of the NCAT Act in regard to: 1. restricting the disclosure of: (a) any evidence given during the private (confidential) hearing on 22 January 2024; (b) the unredacted copy of the confidential documents containing the confidential material the subject of the respondent's application; (c) the confidential affidavit provided to the Tribunal in confidence by the respondent in support of her application, and (d) matters contained in the unredacted copy of the confidential documents containing the confidential material and the confidential affidavit provided to the Tribunal in confidence by the respondent in support of her application to the respondent and the legal representative of the respondent and the Tribunal; and 2. prohibiting the publication of (a) any evidence given during the private (confidential) hearing on 22 January 2024; (b) the unredacted copy of the confidential documents containing the confidential material the subject of the respondent's application; (c) the confidential affidavit provided to the Tribunal in confidence by the respondent in support of her application, and (d) matters contained in the unredacted copy of the confidential documents containing the confidential material and the confidential affidavit provided to the Tribunal in confidence by the respondent in support of her application.
3. As noted above, on 22 January 2024, I did make an order, subject to further order, restricting the disclosure of the evidence given during the private hearing, the confidential statement and the confidential documents, and the matters contained in the confidential statement and confidential documents to the respondent. In my opinion this order should be substituted with the proposed order set out at (1) above.
4. However, I am not persuaded that it is appropriate to make a non-publication and non-recording order, under s 64(1)(b) and (c) of the NCAT Act as proposed by the respondent in her written submissions at [1.(e)].

Orders

1. For the reasons set out above, I make the following orders: 1. For abundant caution the time within which the respondent is to lodge her application under s 59 of the Administrative Decisions Review Act 1997 (NSW) is extended to 29 November 2023 ('the s 59 application'). 2. Pursuant to s 59 of the Administrative Decisions Review Act 1997 (NSW), the respondent is not required to lodge with the Tribunal an unredacted copy of the confidential documents containing the confidential material the subject of the respondent's s 59 application dated 29 November 2023. 3. Order 2 made on 22 January 2024 is substituted by the following order: Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of (a) any evidence given during the Private (Confidential) Hearing on 22 January 2024; (b) the unredacted copy of the confidential documents containing the confidential material the subject of the respondent's s 59 application dated 29 November 2023; (c) the confidential affidavit provided to the Tribunal in confidence by the respondent in support of the respondent's s 59 application, and (d) matters contained in the unredacted copy of the confidential documents containing the confidential material and the confidential affidavit provided to the Tribunal in confidence by the respondent in support of the respondent's s 59 application is restricted to the respondent and the legal representative of the respondent and the Tribunal. 4. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of (a) any evidence given during the Private (Confidential) Hearing on 22 January 2024, (b) the unredacted copy of the confidential documents containing the confidential material the subject of the respondent's s 59 application dated 29 November 2023; (c) the confidential affidavit provided to the Tribunal in confidence by the respondent in support of the respondent's s 59 application, and (d) matters contained in the unredacted copy of the confidential documents containing the confidential material and the confidential affidavit provided to the Tribunal in confidence by the respondent in support of the respondent's s 59 application 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: 20 February 2024