Libdy v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-05-06|Before: Health J

e CAT Act, the transcript and recording of the confidential hearing in these interlocutory proceedings and the contents of all paragraphs in these Reasons marked "[Not for publication]" are not to be published or released to the Applicant or the public.

Background to the substantive matter

The Applicant, Kevin Lidby seeks merits review of the decision of the Commissioner to impose on him a firearms prohibition order (FPO) under s 73 of the Firearms Act 1996 (FA Act), consequent on his being charged with several serious offences including a firearms offence. There were delays by both the Applicant in seeking an internal review and the Commissioner in responding to the request for internal review. The Applicant sought review by this Tribunal, which was opposed by the Commissioner. On 10 November 2020, following a hearing on 27 October 2020, I decided that the Tribunal would deal with the Applicant's application for review, and thereby determine the substantive matter.

Relevant legislation

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.
There is express provision, in the FA Act for evidence to be withheld from an Applicant and from the public. Section 75(5)(a) of the FA Act 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 that, "in order to prevent the disclosure of any such report or other information," the Tribunal "is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative." The Respondent, however, did not consider it necessary to rely upon s 75(5) of the FA Act in respect of the present application; the main submission relied upon ss 49(2) and 64(1) of the CAT Act. I observe that there has been some difference in approach by the Tribunal in respect of s 75(5) of the FA Act: see for example Tukel v Commissioner of Police, NSW Police Force [2021] NSWCATAD 60 cf Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99.
Section 49 of the CAT Act provides for the holding of confidential hearings: 49 Hearings to be open to public (1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private 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. …
Confidentiality orders relating to evidence and proceedings are regulated by s 64 of the CAT Act, which relevantly 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. …
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

The Applicant provided a statement by his solicitor, Mr Giang-Nguyen to the effect that all the criminal charges against the Applicant have now been withdrawn.
In support of the Application in these preliminary proceedings, the Commissioner relied on the affidavit of Senior Constable William James Middlebrook (the Senior Constable) affirmed 13 April 2021.
Since September 2019, the Senior Constable has been performing duties in the Deniliquin Criminal Investigation team, Murray River Police District. Prior to that role, he performed duties in the Region Enforcement Squad (RES), a proactive criminal investigation team, whose duties almost exclusively involved proactive, covert, mid to high-level drug investigations as well as investigations into the manufacture, cultivation and importation of prohibited drugs. The RES also investigated other mid-level crime types related to the supply of prohibited drugs such as those involving firearms, proceeds of crime and money-laundering offences. The RES also conducted significant amounts of physical surveillance on organised criminal identities. He was the officer in charge of Strike Force Domes, the operation which executed a search warrant at the Applicant's home on 19 February 2019, and was the case officer for the execution of that search warrant, following which he arrested the Applicant and charged him with dealing with the proceeds of crime and firearms offences. The charges were subsequently withdrawn by the Office of the Director of the Public Prosecutions.
He has undertaken a number of policing-related courses. He said he has specialised knowledge in criminal investigations into drug supply and organised crime networks and has investigated numerous complex criminal offences. Those investigations have not only been concerned with the collection of evidence, but also the review and analysis of intelligence information relating to Organised Criminal Networks and Outlaw Motorcycle Gangs (OMCG) activity and culture, which impacts directly on the strategies involved in the collection of evidence. He has undertaken a variety of duties and tasks associated with investigating the activities of Organised Criminal Networks. He has worked alongside and liaised with investigators from the New South Wales Crime Commission, Queensland Police Service, Victoria Police, Australian Criminal Intelligence Commission and the Australian Border Force during investigations into high-level drug supply and importation offences and others.
Based on his experience, the Senior Constable's evidence was to the effect that disclosure of any of the Confidential Material would or could: a. prejudice current and future investigations into criminal activity; b. identify confidential sources of information to law enforcement; c. place identified persons at risk of harm; or d. pose a risk to public safety through further acts of violence.
The Confidential Material is only accessible by law enforcement personnel with clearance to access the material. The information in the Confidential Material has been collated and maintained by the Police and other law enforcement agencies to assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct. It is necessary, he submitted, that such intelligence holdings remain confidential and not known to those the subject of them.
Disclosure of the Confidential Material, he wrote, would allow a picture to emerge showing what matters are known to the Police about the activities of the applicant and persons other than the applicant from which inferences could be drawn as to what matters are therefore not known by the Police. While it is possible that the Applicant may suspect or know some of the information held by the Police about his activities, disclosure of the Confidential Material has the potential to confirm any such suspicions.
Further, law enforcement agencies rely heavily on assistance from persons who provide confidential sources of information, including Human Sources and informants. Such confidential information is widely regarded as an important and useful form of intelligence. If the identity of any individuals providing confidential assistance is disclosed, or such individuals were suspected (rightly or wrongly) of being confidential sources of any information in the Confidential Material, they may be subjected to acts of retribution. Further, those who may otherwise have supplied information to the Police may, in the future, be deterred from doing so.
There is a risk that persons, against whose interests a confidential source of information has acted, have a motive to engage in, or to procure, reprisals against the individual who provided the Confidential Material. The physical security, safety and protection of any Human Source of information is of paramount concern to the Police, and therefore the Police is committed to ensuring and maintaining the security and protection of information relating to all Human Sources.
The Respondent also relied on the Senior Constable's confidential affidavit and evidence given in a confidential hearing. 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.
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Consideration

Section 49(1) of the CAT Act makes it clear that the normal rule is that the Tribunal's hearings are to be open to the public, which necessarily includes all parties to the proceedings. Similarly, in reaching its decision, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) CAT Act. However, s 64(1)(d) CAT Act 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" is to be interpreted with regard to the basic common law precept of open justice: see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) at [61].
The provisions of s 64 itself do 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) 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.
However, 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]. Any resultant denial of procedural fairness that would arise from the making of orders under s 64(1) of the CAT Act is not reason to avoid making such orders. That provision implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant) at [24].
The principles relevant to making confidentiality orders of the type sought by the Commissioner were recently summarised recently by the Tribunal in Grant at [18]-[20]: 18. Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that "[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise" (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, "the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing" (CYL v YZA [2017] NSWCATAP 105 at [94]). 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.
In CYL v YZA [2017] NSWCATAP 105 (CYL v YZA) which was referred to in Grant, the Appeal Panel, 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.
I consider that the Senior Constable'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: per Dezfouli.
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]. As I said recently in Zreika v Commissioner of Police [2020] NSWCATAD 202 at [30]: 30. … Not every aspect of Police investigations finds its way into a criminal trial. Furthermore, 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. As to actual Police methodologies, the process is, inevitably longer and more akin to a large jigsaw puzzle. Disclosure of what is known by Police in assembling that "jigsaw" may lead to a disclosure of what is not known (or "the missing pieces" to continue the analogy), with the consequence that those engaged in criminal activities (or their associates) might adjust their behaviour to avoid Police detection…..
I am satisfied that disclosure of the confidential material before me would be likely to have a real effect on Police operations, and that there is a rational basis for the Commissioner's concerns.
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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].
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Thirdly, the Senior Constable deposed at [20] of his affidavit that he was aware of the general principles to public interest immunity in court proceedings and that in court proceedings, the confidential material would be subject to claims of public interest immunity to prevent their disclosure and use. I accept that, generally, information that reveals the identity of a confidential informant is immune from production: Cain v Glass (No 2) (1985) 3 NSWLR 230, at 247-248 and Sankey v Whitlam (1978) 142 CLR 1 at 61. Moreover, public interest immunity extends to the protection of confidentiality of Police methodology: McCausland v State of NSW [2010] NSWSC 1562 at [20].

Conclusion

The Senior Constable's evidence and the submissions on behalf of the Commissioner make a cogent case for the grant of confidentiality orders in respect of the documents and in relation to the conduct of the hearing. Having some to that view, it was unnecessary to consider the application of s 75(5)(a) of the FA Act.
The Applicant's counsel had submitted that it was open to the Tribunal to make Orders that were no broader than was necessary, and that I could make Orders that material not be disclosed to the Applicant, but only to his legal representatives. In that regard, I consider the discussion in Tukel instructive, in particular, the observations that such a course may be the 'dangerous' and the 'invidious' position of the legal representatives should the confidential material be made available to them. I make the Orders, as asked.

Orders 1. Pursuant to s. 49(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), part of the hearing of this Application be conducted in the absence of Mr Libdy (the Applicant) in the substantive proceedings, his legal representative, and the public (Private Hearing). 2. Pursuant to s. 59 of the Administrative Decisions Review Act 1997 (ADR Act), the Respondent not be required to lodge copies of the documents described in the confidential affidavit provided to the Tribunal by the Respondent (Confidential Documents). 3. Pursuant to s. 64(1)(c) of the CAT Act, the publication of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Affidavit, and (c) matters contained in the Confidential Documents and the Confidential Affidavit, is prohibited. 4. Pursuant to s. 64(1)(d) of the CAT Act, the disclosure of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Affidavit, (c) matters contained in the Confidential Documents and the Confidential Affidavit, and (d) the transcript and recording of the Private Hearing, is restricted to the Respondent, his legal representatives, and the Tribunal. 5. Pursuant to ss. 64(1)(b) and 64(1)(c) of the CAT Act, the publication and reporting of the Private Hearing, including any oral evidence given during the Private Hearing, is prohibited.

In addition to the Orders set out above, pursuant to ss 64(1)(c) and (d) of the CAT Act, the transcript and recording of the confidential hearing in these interlocutory proceedings and the contents of all paragraphs in these Reasons marked "[Not for publication]" are not to be published or released to the Applicant or the public.

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: 12 May 2021

At a glance

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Judgment (9 paragraphs)

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Cases Cited (17)

Cited By (1)