Pemberton 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, in this case, the Commissioner, 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. The Respondent also sought Orders under ss 49(2) and 64(1) of the CAT Act. Section 49 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. ...
3. 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. …

Evidence

1. In support of the application in these preliminary proceedings, the Commissioner relied on the affidavit of Acting Inspector Troy Hamilton, dated 15 February 2022. The Applicant had the opportunity to file evidence in response to the Respondent's evidence and submissions but only filed material relevant to the substrative matter. In relation to the Orders sought the Applicant submitted that it was unfair that everything was not "on the table" so that he knew what the case was against him.
2. Inspector Hamilton, who was not required for cross examination, has been a Police officer for over 21 years and is currently Manager, Compliance and Enforcement attached to the Firearms Registry. Based on his experience, and after reviewing the Confidential Documents, his evidence was to the effect that disclosure of any of the Confidential Material would or could: 1. prejudice future investigations into criminal activity; 2. expose police methodology; 3. reveal methods of investigation 4. identify confidential sources of information to law enforcement; and/or 5. place identified persons at risk of harm.
3. His evidence was that the Confidential Material is only accessible by law enforcement personnel and had been collated and maintained by the Police to assist in the monitoring and investigation of criminal activity. It is necessary, in Inspector Hamilton's view, that such intelligence holdings remain confidential and not known to those who are subject to such intelligence holdings. 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 to Police and from which inferences could be drawn by the Applicant and others as to what matters are therefore not known to the Police. While it is possible that the Applicant may suspect or know some of the information held by the Police, disclosure of the Confidential Material may confirm any such suspicions.
4. Further, Inspector Hamilton wrote in his statement, that law enforcement agencies rely heavily on assistance from persons who provide confidential information, including registered sources and informants. Such confidential information is widely regarded as an important and useful form of intelligence. If the identity of individuals providing confidential assistance were to be 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. In addition, those who may otherwise have supplied information to Police may, in the future, be deterred from doing so.
5. Inspector Hamilton also wrote that there is a risk that persons, against whose interests a confidential source of information has acted, have a motive to carry out, or to procure, reprisals against the individual who provided the information contained in the Confidential Material. Further, sources of criminal intelligence are regarded with antipathy generally and some people are willing to harm sources for no reason other than that they are sources, or are at least less inhibited when considering harming a person if that person is a source. The physical security, safety and protection of a registered source or informant are of paramount concern to the Police, and therefore the Police are committed to ensuring and maintaining the security and protection of all registered sources and informants.
6. Inspector Hamilton also considered the Confidential Documents would properly be subject to a claim for public interest immunity.
7. The Respondent also relied on Inspector Hamilton's confidential statement. I do not propose to discuss any material that was presented on a confidential basis in open Reasons. Those parts of the Reasons that are not to be disclosed are identified [Not for publication]: s 64 of the CAT Act.
8. [Not for publication]
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10. [Not for publication]
11. [Not for publication]

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. In reaching its decision in conducting its review, 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) of the 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." "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]. There are fundamental principles of open justice and procedural fairness: see for example Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66, citing Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247. In Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [26], the Tribunal stated that the starting point in deciding whether the discretion in s 64(1) of the CAT Act should be exercised 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 such an order, the Tribunal must turn its mind to whether it would be appropriate because of "the confidential nature" of the material 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: see Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant) at [24].
2. I was referred to Brennan v State of New South Wales [2006] NSWSC 167 (Brennan) where Hall J referred to the principles set out in R v Mentuck (2001) 3 SCR 442, a decision of the Supreme Court of Canada. His Honour held at [51]-[52]: 51. The issue in the present case ... is the public interest in the non-disclosure of certain information in relation to specialised investigation methodology employed by police. The open justice principle is to be balanced against that interest. 52. It is necessary in determining the issue to consider the evidence as to whether disclosure would be injurious to the public interest: ... In that respect it is relevant to have regard to: (a) the confidential affidavits in support of the claim and the grounds and reasons disclosed therein; (b) the nature of the evidence and the submissions and the contents of the relevant documents in order to determine their significance having regard to the generality or specificity of the content of the evidence, submissions or other material in determining whether disclosure would be injurious to the public interest; (c) whether the information or material is relevant to ongoing or specific future investigations; (d) whether the nature of the information or material discloses methodology, strategies or procedures in terms of detail that is not usually disclosed by evidence given in the course of criminal trials.
3. The principles relevant to making confidentiality orders of the type sought by the Commissioner were recently summarised by the Tribunal in Grant at [18]-[19]: 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).
4. The principles in Grant were recently cited in Bettington v Commissioner of Police [2020] NSWCATAD 303 at [31] and Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27 at [127].
5. Most proceedings in the Tribunal are ordinary adversarial 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.
6. 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 where 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.
7. I consider that Inspector Hamilton'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.
8. Firstly, there is significant public interest in protecting Police investigative techniques: see for example Brennan at [44]. Members of the public might speculate as to Police methodologies, but not every aspect of Police investigations finds its way into a criminal trial. As I have observed many times, 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 ongoing investigations.
9. [Not for publication]
10. 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 sources: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270 (Simring), at [69].
11. [Not for publication]
12. [Not for publication]

Conclusion

1. Inspector Hamilton's evidence and the Respondent's submissions make a cogent case for the grant of confidentiality and I will make the Orders, virtually as sought. I did not understand the Respondent to be seeking to have the entire substantive hearing conducted on a confidential basis or that all of its evidence was to be excluded from the Applicant, and the Orders sought have been adjusted accordingly.

Orders 1. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the substantive application be conducted, insofar as it relates to the Confidential Documents or Confidential Evidence, in the absence of the Applicant, any legal representative for the Applicant in the substantive proceedings, and the public (Private Hearing); 2. Pursuant to s 59 of the Administrative Decisions Review Act 1997 (ADR Act), the Respondent (the Commissioner) not be required to lodge copies of the documents (the Confidential Documents) specified in the confidential statement in support of the application and provided to the Tribunal by the Commissioner (the Confidential Statement); 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 Statement and (c) matters contained in the Confidential Documents and the Confidential Statement, 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 Statement and (c) matters contained in the Confidential Documents and the Confidential Statement is restricted to the Commissioner, the legal representatives for the Commissioner 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 of this application, including any oral evidence given during the Private Hearing, is prohibited.

1. 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: 11 April 2022