Madziala v Commissioner of Police

Applicable legislation

1. Section 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act) provides for the holding of confidential hearings: 9 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.
2. Confidentiality orders relating to evidence and proceedings are regulated by s 64, 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.
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 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) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, 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.
4. In the present interlocutory motion, the respondent seeks orders under those provisions.

The evidence

1. The respondent did not call oral evidence but relied on the s 58 documents and certain other documentary material, including confidential exhibit CR3. The respondent tendered a signed statement by Senior Constable Wayne Jackson (exhibit R2), currently a compliance coordinator at the New South Wales Firearms Registry, which is part of the New South Wales Police Force. In that role he deals regularly with firearms licensing matters, audits firearms dealers, provides training on firearms licensing, lectures in firearms licensing courses and undertakes other duties related to firearms.
2. The statement had been prepared in support of the Commissioner's application for exemption under s 58 of the ADR Act to place confidential material before the tribunal, and for a private hearing and orders to prohibit disclosure and publication of the information and certain confidential information that can be provided to the tribunal in the confidential hearing (the Confidential Material). The Confidential Material comprises records held by the New South Wales Police Force containing confidential criminal intelligence in respect of the applicant which can be provided to the tribunal if disclosure is prohibited. The statement requested that the Confidential Material be the subject of orders under s 59(2)(b) of the ADR Act and ss 49 and 64 of the CAT Act.
3. The statement explained that the Computerised Operational Policing System (COPS) is an electronic database that enables police to record and enquire on the details of persons, organizations, locations, objects and property and vehicles that are of interest to police. It includes an intelligence database that is used to create, update and enquire on all information that is specifically linked to an information report. The creation of an information report is the other avenue by which information is entered into COPS. Such information can be derived from one of a number of different types of sources, such as something that was observed or reported by a member of the public. Once on the COPS database, the information is used to identify, assess and evaluate the law enforcement environment.
4. S/C Jackson had reviewed the Confidential Material and said that disclosure of any of it would or could identify confidential sources of information to law enforcement, place identified persons at risk of harm and expose police methodology. The Confidential Material is accessible only by law enforcement personnel with the appropriate clearance. Such intelligence holdings need to remain confidential and not known to those who are subject to such holdings.
5. Disclosure of the Confidential Material would allow a picture to emerge showing what matters are known to the police about the activities of persons of interest known to the police and from which inferences could be drawn by the applicant as to what matters are therefore not known. While it is possible that an applicant may suspect or know some of the information held by the police, disclosure of the Confidential Material could confirm any such suspicions.
6. Further, law enforcement agencies rely heavily on assistance from persons who provide confidential sources of information. If the identity of any individuals providing confidential assistance were disclosed, they could be subjected to acts of retribution and those who might otherwise have supplied information to the police might in the future be deterred from doing so. There is a risk that persons against whose interests a confidential source of information has acted would have a motive to carry out or procure reprisals against the individual who provided the information contained in the Confidential Material. The physical security, safety and protection of an informant are of paramount concern to the NSWPF, which is therefore committed to ensuring and maintaining the security and protection of all informants.
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]

Applicant's submissions

1. The applicant on 2 March 2021 lodged some brief written submissions in relation to the confidentiality motion. The applicant asked that the confidential information not be used in these proceedings at all. Information gathered by police was provided by unreliable sources. Informants or other persons providing information collected cash payment or benefits from police, which created bias towards themselves for profit.
2. Any information provided by those persons was unreliable. Those persons' information and any other information obtained in the confidential affidavit might be inaccurate, misleading and gathered unlawfully. The use of confidential information would also not afford natural justice for the applicant.

Consideration

1. The normal rule in the tribunal is that its hearings are open to the public and its reasons for decision given publicly, sometimes orally, but more often in writing. That rule is recognized in s 49(1) of the CAT Act. As the Appeal Panel has said, however, the principle of open justice must sometimes be balanced against other values. There are other public interests that may militate against identifying witnesses or third persons mentioned in proceedings (CYL v YZA [2017] NSWCATAP 105, [94] - [96]). That is particularly so where the evidence to be provided concerns evidence of a sensitive nature provided by a victim or matters that are being investigated by police.
2. Before making an order under s 59 of the ADR Act or s 64 of the CAT Act, the tribunal must consider that it would be appropriate to make an order prohibiting disclosure of the documents because of "the confidential nature" of those documents or "for any other reason" (Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41, [3]. See also Bungree Aboriginal Association Ltd v New South Wales Registrar of Community Housing [2019] NSWCATAD 61, [26] - [27].).
3. The Appeal Panel surveyed the applicable principles in detail in State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69 (examining the equivalent provisions in the Administrative Decisions Tribunal Act 1997), [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 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 JA. 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 just discussed, 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 view of Ms Johnson's submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. 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….
4. As Smart J said in Simring v Commissioner of Police [2009] NSWSC 270, [69], there is a strong public interest in criminal offences being reported to the police and the sources of information not drying up: "If the victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the Police…."
5. S/C Jackson's statement of 23 February 2021 (exhibit R2) explains in general terms the confidential and sensitive nature of the confidential material, which could be accessed only by select law enforcement personnel who hold the required clearance. The purpose of the information is to assist in monitoring and investigating persons who participate in unlawful conduct and is collated by police. For that purpose it needed to remain confidential, and any disclosure of the confidential material would demonstrate what matters are known and unknown to the police about the activities of the applicant or of other persons.
6. It could reveal the identity of persons providing confidential intelligence to police, including registered sources and informants. Police rely heavily on assistance from these people and the confidential information provided is an important and useful form of intelligence. Disclosing the identity of these persons could result in retribution against them and also in deterring those who might otherwise have supplied valuable information. Disclosure could endanger the physical security, safety and protection of an individual who has provided information. The police wished to minimize the risk of reprisals against informants and protect its sources and those who provide confidential information.
7. The evidence suggests that the circumstances of this case are sufficiently special that the making of the orders sought is "desirable" within the meaning of s 64(1). The confidential information strengthens that conclusion.
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. [NOT FOR PUBLICATION]
13. I note the applicant's objection to the use of confidential information on procedural fairness grounds. Nevertheless, any compromising of procedural fairness that could arise from the making of orders under s 64(1) of the CAT Act is not a reason to avoid making such an order. That provision implicitly permits the circumventing of procedural fairness: Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24].
14. The applicant also opposed the grant of confidentiality on the ground that information from police informants is biased and unreliable. It is for the member presiding at the substantive hearing to decide what weight, if any, should be given to the confidential information, however.
15. For the purposes of this motion, I assume that the facts are as stated in exhibits R1, R2 and CR3. In my view that evidence, both open and confidential, makes a cogent case for the grant of confidentiality and I will make the orders as asked.
16. At the hearing, Ms Norquay indicated that the respondent proposed to release redacted versions of some of the confidential information to the applicant, as some of it would be known to the applicant already, and sought an order requiring the respondent to release that information as supplementary s 58 documents within three days after the date of this decision. I will add a further order to that effect.

Orders 1. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement. 2. Pursuant to s 59 of the Administrative Decisions Review Act 1997, the respondent ("the Commissioner") not be required to lodge copies of the documents or parts of documents ("the Confidential Material") specified in the Confidential Statement in support of the application and provided to the tribunal in accordance with the orders of the tribunal (confidential exhibit CR3). 3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3 is prohibited. 4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal. 5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant. 6. Within three days following the date of this decision, the respondent is to file and serve supplementary s 58 documents containing the redacted portions of the Confidential Material that the respondent proposes to release to the applicant. 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: 16 March 2021