Mekhitarian 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. Section 59 of the ADR Act however 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.
2. 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. ...
3. Ordinarily, Tribunal hearings are held in public. However, s 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. ...

The evidence

1. In support of the Application in these preliminary proceedings, the Commissioner relied on the affidavit of Acting Senior Analyst Deakin Yates dated 21 September 2021. Mr Yates wrote of his experience as an analyst for both the Police and, formerly, the ADF. His current role is to use intelligence-based information to assess the suitability of applicants for and holders of, firearms licences in NSW.
2. The Confidential Material comprises two intelligence reports and a Computerised Operational Policing System (COPS) Event record. Mr Yates' evidence was that COPS is an electronic database used by Police as a record-keeping system to capture, record and store operational information and intelligence on an organisation-wide basis and provides a means by which Police record the details of persons, organisations, locations, objects, property and vehicles that are of interest to Police. COPS is made up of a number of sub-databases including Intelligence and Events.
3. Mr Yates' evidence was that the Intelligence sub-database is used in relation to 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; an Information Report is the method by which information that is, or could be, of interest to Police is recorded. This information can be derived from one or a number of different types of sources, including confidential sources or informants. It could be based on something that was observed or that was reported by a member of the public anonymously and/or confidentially to Police, including through Crimestoppers. When information is entered into COPS, the system allocates a unique number to that Information Report. Once on the COPS database, the information on COPS is used to identify, assess and evaluate the law enforcement environment (which includes the detection and prevention of crime). COPS is a secure and confidential database that can only be accessed by law enforcement personnel with appropriate security clearance.
4. Mr Yates had reviewed the Confidential Material and, based on his experience, considered that disclosure of the Confidential Material would or could: 1. reveal a confidential source of information to Police; 2. expose the confidential source to a risk of harm if it becomes known that they supplied information to Police (from which information their identity may be capable of being known); 3. expose Police methodology; and/or 4. undermine the community policing model, which encourages (and relies on) the community to report criminal activity to Police anonymously and in confidence. If the community becomes aware that anonymous and confidential reports to Police can be readily accessed or become known to respondents of those reports, it can undermine confidence in reporting and inhibit Police ability to detect and prevent crime as well as potentially expose informants to harm.
5. Mr Yates's evidence was that the information in the Confidential Material has been collated and maintained by Police to assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct; it is necessary that such intelligence holdings remain confidential and not known to those who are the subject of such holdings. Disclosure of the Confidential Material would also allow a picture to emerge showing what matters are known to the Police about the activities of the persons of interest and from which inferences could be drawn as to what matters are therefore not known to the Police. While it is possible that the Applicant or other persons may suspect or know some of the information held by the Police, disclosure of the Confidential Material may confirm any such suspicions.
6. The Respondent also relied on Mr Yates' confidential affidavit and its confidential written submissions and oral submissions made in the confidential part of the 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.
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. The Applicant agreed that confidentiality is important to protect the identity of informants. His concerns were that he did not know what adverse information the Police could possibly have in relation to him. His submissions filed to date in the substantive matter reflect his concerns that the revocation of his licence and consequent seizure of his firearms was after his son had left the Applicant's home where the firearms were stored, after an AVO had been issued for the protection of the Applicant and his wife from their son, and after their son had been incarcerated. As I told the Applicant, these are matters more relevant to the substantive issue, but I had noted, even at this time, his concern.

CONSIDERATION

1. 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].
2. The provisions of s 64 itself do not provide guidance as to how the discretion in that section should be exercised. 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.
3. 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]. 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].
4. The principles relevant to making confidentiality orders of the type sought by the Commissioner were recently summarised 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.
5. In Dezfouli, which examined comparable provisions in the Administrative Decisions Tribunal Act 1977, 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.
6. [NOT FOR PUBLICATION]
7. The evidence of Mr Yates satisfies me that the circumstances at hand are sufficiently "special" (per Dezfouli) so as to justify the making of confidentiality orders sought by the Commissioner, for the following reasons:
8. 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 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.....
9. [NOT FOR PUBLICATION]
10. I am satisfied that disclosure of the Confidential Material would be likely to have a real effect on Police operations, and that there is a rational basis for the Commissioner's concerns.
11. 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], and more recently Libdy v Commissioner of Police [2021] NSWCATAD 122 at [42].
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]

Conclusion

1. Mr Yates' evidence and the submissions on behalf of the Commissioner make a cogent case for the grant of confidentiality orders in respect of the Confidential Material and in relation to the conduct of the hearing, and I make the Orders as sought.

Orders 1. Pursuant to s 49(2) of the CAT Act, the hearing of this application be conducted in the absence of the Applicant, the legal representative for the Applicant and the public; 2. Pursuant to s 59 of the ADR Act, the Respondent is not required to lodge copies of the documents or parts of the documents, that being the Confidential Material, specified in the Confidential Affidavit with the Tribunal in accordance with s 58 of the ADR Act; 3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material and the Confidential Affidavit is prohibited; 4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and the Confidential Affidavit or matters contained in the Confidential Material and the Confidential Affidavit is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal; 5. Pursuant to s 64(1)(b) and s 64(1)(c) of the CAT Act, the publication and reporting of the hearing of this application, including any evidence given during the hearing 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: 25 October 2021