Ruyters v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-02-26

REASONS FOR DECISION

In 2010 Ms Keli Lane was convicted of the murder of her daughter, Tegan, and sentenced to a term of imprisonment. The applicant in this matter, Dr Michelle Ruyters, represents the Bridge of Hope Innocence Initiative which has petitioned the NSW Attorney-General to review Ms Lane's conviction.
On 27 March 2018 Ms Ruyters, on behalf of Ms Lane, made an application to the Commissioner of Police, NSW Police Force (the Commissioner) under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to information acquired by the NSW Police during the investigation into the disappearance and suspected death of Tegan Lane.
The Commissioner has described the request in the following terms which appears to accurately set out its scope: …recordings and transcripts of particular communications (specifically telephone conversations and text messages) intercepted by the [NSW Police Force] under warrants issued pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) during the course of the [NSW Police Force]'s investigation into the disappearance and death of Tegan Lane.
Dr Ruyters states that, although the fact of the existence of recordings was in the public domain, only a portion of the telephone intercepts obtained by the NSW Police Force in connection with the investigation of Ms Lane was disclosed to the defence at Ms Lane's trial. Ms Lane is seeking disclosure of the remainder of the recordings. Dr Ruyters states that the further recordings may provide information to support Ms Lane's Petition of Mercy.
On 4 December 2018 the Commissioner decided to refuse access on the basis that the documents sought were created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence and were thus subject to a conclusive presumption that there is an overriding public interest against disclosure (Schedule 1, cl 7(c) GIPA Act).

The issues

The issues which arise for determination in this application are: 1. What is the decision under review and does the Tribunal have jurisdiction to review it? 2. Is there an inconsistency between the GIPA Act and the TIA Act? 3. If so, what are the consequences of inconsistency for the disposition of this application? 4. If there is no inconsistency, how is the application to be determined?

The decision under review and jurisdiction

Leaving to one side the Commissioner's arguments concerning the operation of the TIA Act, the Commissioner accepts that the information to which access is being sought is "government information" within the meaning of s 4(1) of the GIPA Act. The Commissioner also accepts that the access application is a valid access application.
Section 58 deals with how access applications are decided and provides: (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
There is general agreement that, if the decision under review is the decision made on 4 December 2018 to refuse to provide access to the information, the Tribunal has administrative review jurisdiction over that decision. This is so even though the Commissioner submits he had no power to make that decision. An administrative tribunal may conduct merits review in respect of a decision affected by jurisdictional error (Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd (1979) 2 ALD 1). Section 6 of the ADR Act also ensures that certain decisions which are made without power are nevertheless reviewable by the Tribunal (McGuirk v University of New South Wales [2009] NSWADTAP 12 at [16]-[18]).
The Commissioner, however, argues that the Commissioner's refusal, as recorded in his letter of 4 April 2019, to make a new decision in respect of the access application on the basis that he has no power under the GIPA Act to do so, is the decision under review. That decision, the Commissioner argues, is not a decision over which the Tribunal has administrative review jurisdiction under the ADR Act. Dr Ruyters and the Information Commissioner are of the view that the decision under review is the decision of 4 December 2018 to refuse access. They also submit that, even if the decision under review is a decision contained in the Commissioner's letter of 4 April 2019, the Tribunal nevertheless has jurisdiction to review that decision.
As noted above, the Tribunal remitted the matter to the Commissioner under s 65 of the ADR Act with a direction that a new decision was to be made by 4 April 2019. Section 65 empowers the Tribunal, at any stage of the proceedings, to remit the decision for reconsideration of the decision by the administrator. Sub-section 65(2) provides that, if a decision is remitted to an administrator, the administrator may reconsider the decision and may: 1. affirm the decision, or 2. vary the decision, or 3. set aside the decision and make a new decision in substitution for the decision is set aside.
It must be noted that s 65(2) does not compel an agency to reconsider the decision. The language used is permissive rather than directive. Where a decision is reconsidered and a varied or a new decision in substitution is made, the application before the Tribunal is taken to be an application for review of the varied or new decision. In those circumstances the person who made the application may either proceed with the application for review of the decision as varied or substituted or withdraw the application.
The position put by the Information Commissioner at the hearing was that the Commissioner did none of the things in s 65(2). In particular, the decision of 4 December 2018 was not set aside and a new decision was not made in substitution. In that regard, the Information Commissioner notes that the Commissioner's letter of 4 April 2019 expressly states that the Commissioner was of the view that "he cannot make a new or varied decision".
The Commissioner argues that he did set aside the 4 December 2018 decision in his letter of 4 April 2019 and refers to the fact that he stated that "the original basis for the decision under review cannot be maintained". This, he states, was a clear communication to all interested parties that he did not seek to defend or justify the decision, and thus, represented a setting aside of the decision. A more formal step, such as making an "instrument" or sending formal "notification", was not required to be taken to set aside the decision and nothing in the ADR Act requires such a formal step. The Commissioner states, and I agree, that the ordinary way an administrator sets aside a decision is simply by making a new one in substitution.
The Commissioner submits that, having set aside the earlier decision, he then went on to make a new decision which was that he could not make a new or varied decision in relation to the access application because such a decision cannot lawfully be made under the GIPA Act. The Commissioner states he took an action which is deemed to be a "decision" by reference to s 6(4) of the ADR Act. Section 6 of the ADR Act deals with the meaning of "decision" in that Act and sets out a range of actions which fall within the meaning of "decision". Sub-section 6(4) provides that, for the purposes of the ADR Act: … a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested.
In determining what the Commissioner did by his letter of 4 April 2019 it is important to look at the terms and language of the letter. The letter is addressed to the Registrar of the Tribunal and bore the date 4 April 2019 which was the date by which the Commissioner was required by the Tribunal's directions to reconsider the 4 December 2018 decision under s 65 of the ADR Act. While Dr Ruyters, the access applicant, was provided with a copy of the letter, it was not addressed to her and there is no indication that it was written by someone with delegated authority to make decisions for the NSW Police Force under the GIPA Act. I note that in his affidavit filed in these proceedings Inspector Marco Carlon states that all decisions in relation to access applications are made by persons within the InfoLink unit of the NSW Police Force who have been authorised to do so pursuant to an instrument signed by the Commissioner. While I note the submissions of the respondent (which I have not found necessary to deal with in detail in any way - see below) that the "decision" of 4 April 2019 is not a decision made under the GIPA Act, it is not clear by what other authority the "decision" was made by the Commissioner (or a delegate).
While I accept the Commissioner's statement that there is no requirement for formal notice to be given of a decision, it is curious that, if the letter is in fact a new decision on the access application, it is not addressed to the access applicant and does not refer directly to her application.
The 4 April 2019 letter from the Crown Solicitor's Office states that, by notice dated 4 December 2018, the Commissioner decided to refuse access to the information sought pursuant to s 58(1)(d) on the basis that there was a conclusive presumption of an overriding public interest against disclosure. It goes on to state that further inquiries showed that the underlying basis upon which the decision was made was incorrect, that is, the documents were not created by the State Crime Command. The letter then says that, accordingly, "the original basis of the decision under review cannot be maintained". It then goes on to explain why, in the Commissioner's view, he cannot make a new or varied decision in relation to the access application. The Commissioner states that this was effectively a setting aside of the earlier decision and the making of a new decision.
The letter of 4 April 2019 was written in response to the Tribunal's directions made to remit the matter to the Commissioner for reconsideration. In my view, it is no more than a letter, written under the hand of the Commissioner's legal representative from the Crown Solicitor's Office, conveying to the Tribunal (and Dr Ruyters and the Information Commissioner by copy) the Commissioner's view that the 4 December 2018 decision lacked an evidentiary basis but that he could not make a new or varied decision in relation to the access application. The precise wording of the letter is that the Commissioner "cannot make a new or varied decision in relation to the access application, because such a decision cannot lawfully be made". In effect, he exercised his discretion not to make a decision on the matter which had been remitted under s 65 of the ADR Act, a course permitted by that Act. In my view, exercising a statutory discretion not to reconsider a decision made in respect of an application cannot be characterised as making a new decision on that application.
This conclusion is supported by the fact that following the 4 April 2019 letter, in the context of the Commissioner's application for summary dismissal of Ms Ruyter's application to the Tribunal seeking review of the 4 December 2018 decision, the Commissioner proceeded on the basis that the decision under review was the 4 December 2018 decision. There was no submission made that that decision had been set aside and a new decision made under s 65. The Commissioner seems to have come to the view that he made a new decision under s 65 many months after he advised that he could not in fact make a decision. There also does not appear to be any record of the decision (if that is what it was) other than the letter from Commissioner's legal representative.
In the circumstances, it is my view that the 4 December 2018 is the operative decision even though the Commissioner now believes there is no tenable basis to that decision as made. As noted above, the Tribunal has jurisdiction to review that decision. The fact that the Commissioner intends to argue a different basis to the refusal decision made on 4 December 2018 in the Tribunal proceedings is not unusual.
The parties made extensive submissions on whether, if indeed a new decision had been made by the Commissioner on the access application (and conveyed in the letter of 4 April 2019), the Tribunal has power to review that new decision. In light of my conclusions above, I do not find it necessary to address those submissions. Although I do note that there is considerable force to the proposition that a refusal by a decision maker to make a decision because the decision maker considers that a decision cannot lawfully be made, which is deemed by s 6(4) of the ADR Act to be "a decision made under the enabling legislation to refuse to make the decision requested", is a decision "to refuse to provide access to information in response to an access application", and is thus a decision that is reviewable by the Tribunal under s 80(d) of the GIPA Act.

Is there an inconsistency between the GIPA Act and the TIA Act?

The Commissioner's primary position is that there is an inconsistency between the GIPA Act and the TIA Act with the result that the former Act is invalid in its purported application to the information gathered through the intercepts to the extent of the inconsistency under s 109 of the Constitution. The Tribunal is being asked to consider whether there is in fact an inconsistency between the two pieces of legislation.

Tribunal's power to consider a constitutional question

No issue was raised between the parties that the Tribunal, in determining an application for administrative review over which it has jurisdiction, may reach a conclusion about a constitutional question. It is now well settled that the Tribunal does not exercise judicial power in relation to a matter of the sort referred to in s 75 or 76 of the Constitution, including a matter involving its interpretation, because the Tribunal is not a "court of a State" within the meaning of Ch III of the Constitution (Burns v Corbett [2018] HCA 15; Attorney-General (NSW) v Gatsby (2018) NSWCA 254). It also seems clear that in exercising its functions under the ADR Act the Tribunal is exercising administrative power not judicial power (see s 63 of the ADR Act; Lamb v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [194]; see also comments in Choi v University of Technology Sydney (No 3) [2020] NSWCA 343 at [44]). In doing so it may consider the constitutional validity of State legislation in the course of the exercise of its statutory powers and express a view or opinion as to the limits of its own authority but that is not a legally enforceable determination of a constitutional question (Re Adams and the Tax Agents' Board (1976) 1 ALD 251; Attorney-General of New South Wales v 2UE Sydney Pty Ltd [2006] NSWCA 349; Sunol v Collier [2012] NSWCA 14).

The information the subject of the access application

The precise nature of the information held by the NSW Police Force is set out in the affidavit of Detective Superintendent Arthur Kopsias who is the commander, High Tech Crime Branch, NSW Police Force. He states that the NSW Police Force intercepted 1,985 "activations" of telecommunications services associated with Keli Lane during the course of the investigation into the disappearance and death of Tegan Lane. He explains that an "activation" is any electronic activity associated with the telecommunications service, including unanswered calls, voice recorded messages, conversations between persons, text messages (between mobile services) and Internet product (for mobile or home ADSL/NBN services). Detective Superintendent Kopsias states that only a portion of the 1,985 activations are conversations or text messages. Accordingly, only a portion of the activations falls within the scope of the access application which seeks only recordings and transcripts of conversations and text messages.
The Commissioner states that insofar as the GIPA Act purports to apply to the intercepted information, it purports to require the Commissioner to do two things in respect of that information: (a) to apply the public interest test in respect of the information and thus to examine, assess or consider the information for the purpose of determining whether there is an overriding public interest against disclosure of the information (ss 13 - 14); and (b) to provide Dr Ruyters with access to the information (thereby disclosing the information to Dr Ruyters), unless satisfied that there is an overriding public interest against disclosure of the information (s 9 (1)).

The legislative provisions

Before proceeding, it is useful to set out the relevant provisions of the GIPA Act and the TIA Act.
The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public a legally enforceable right to be provided with access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure (s 9(1)).
Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Sub-section 9(1) provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of that information.
In matters other than where a conclusive presumption against disclosure applies in accordance with Schedule 1 to the GIPA Act, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13). In that case the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure. A non-exhaustive list of public interest considerations in favour of disclosure is set out in s 12. The Table to s 14 provides an exhaustive list of public interest considerations against disclosure which may be taken into account in determining whether there is an overriding public interest against the disclosure of government information.
It is only where the public interest considerations against disclosure outweigh those in favour that, in light of the presumption in s 5, information should not be disclosed. There is no question that under the GIPA Act providing an access applicant with access to government information involves some form of disclosure of the information to the applicant.
The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Commissioner (s 105).
The TIA Act prohibits the interception of a communication passing over a telecommunications system except where the interception is done under a warrant. As far as I could ascertain there is no issue between the parties that the information to which Dr Ruyters seeks access is lawfully intercepted telecommunications information under the TIA Act. The information was gathered through the use of warrants issued by a judicial officer or member of the Administrative Appeals Tribunal and details of the warrants were provided in the material lodged with the Tribunal by Dr Ruyters arising out of the prosecution of Ms Lane.
By s 63(1) of the TIA Act a person must not "communicate to another person, make use of or make a record of" lawfully intercepted information. A person who contravenes s 63(1) is guilty of an indictable offence which is punishable on conviction by imprisonment for a period of two years (s 105). Part 2-6 of the TIA Act contains a number of exceptions to the prohibition on dealing with intercepted information. Relevant to this application, s 67(1) provides an exception for dealing in intercepted information for a "permitted purpose".

Is disclosure in fact permitted by the TIA Act?

Dr Ruyters submits that the information sought in her access application falls within a "permitted purpose" as defined in section 5C of the TIA Act and therefore the exception to s 63(1) as set out in s 67(1) is applicable. Sub-section 67(1) provides: Dealing for permitted purposes in relation to an agency (1) An officer or staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following: (a) lawfully intercepted information other than foreign intelligence information or general computer access intercept information; (b) interception warrant information.
"Permitted purpose" is relevantly defined in s 5C of the TIA Act: permitted purpose, in relation to an interception agency, the Immigration and Border Protection Department, an eligible Commonwealth authority, an eligible authority of a State or ASIC, means a purpose connected with: (a) in any case (except in the case of the Immigration and Border Protection Department or ASIC): (i) an investigation by the agency or eligible authority of a prescribed offence; (ii) the making by an authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority; (iii) a relevant proceeding in relation to the agency or eligible authority; …
Dr Ruyters submits that the information sought falls within two of the limbs of a "permitted purpose" as defined in s 5C and therefore the exception in s 67(1) applies. She submits that communication of the intercepted information to her under the GIPA Act is for "a purpose connected with":

an investigation by the agency or eligible authority of a prescribed offence (as in (a)(i)); or
a relevant proceeding in relation to the agency or eligible authority (as in (a)(iii)).

The term "proceeding" is defined in s 5 to mean: 1. a proceeding or proposed proceeding in a federal court or in a court of a State or Territory; 2. a proceeding or proposed proceeding, or a hearing or proposed hearing, before a tribunal in Australia, or before any other body, authority or person in Australia having power to hear or examine evidence; or 3. an examination or proposed examination by or before such a tribunal, body, authority or person.
The Commissioner submits that s 67(1) is concerned with the distribution of information within an agency and not to communication external to the agency. He refers to the case of Samsonidis v Commissioner, Australian Federal Police (2007) 163 FCR 111 where the issue was whether communication by the Australian Federal Police (AFP) of intercepted information to the Greek authorities fell within the "permitted purpose" exemption. The Full Federal Court proceeded on the basis that the AFP could communicate such information to an overseas agency but held that the communication was not for a "permitted purpose" as defined in s 67(1).
The Commissioner submits, however, that the Tribunal must or should follow R v Zhia Qiang Han [2011] NSWCAA 120 where the NSW Court of Criminal Appeal specifically considered s 67(1) and cautioned against the approach taken in Samsonidis. The Court of Criminal Appeal stated that the AFP was misconceived in seeking to rely on s 67(1) in that case and stated that s 67(1)(a) is concerned with distribution or communication within an agency and not externally (which is provided for in other exemptions).
Dr Ruyters argues that s 67(1) does not confine communications to intra-agency communications and that the words "communicate to another person" in s 67(1) contain no such limitation. She submits that the Tribunal should follow Samsonidis rather than obiter dictum to the contrary in Zhia Qiang Han. I do not agree. The issue was specifically considered by the court in Zhia Qiang Han and, that being a decision of a superior court in NSW, the Tribunal should prefer its views rather than those expressed by the Full Federal Court in Samsonidis where the issue was not addressed directly. Dr Ruyters has not put forward any persuasive arguments as to why the Court of Criminal Appeal's decision is plainly or clearly wrong such that it ought not be followed. In light of the court's conclusions in Zhia Qiang Han it is apparent that Dr Ruyters is unable to rely upon the exclusion in s 67 as any communication would be to a third party and not internally within the agency.
In any event, even if the intra-agency limitation is not present in s 67(1), Dr Ruyters faces further obstacles in her argument that communication to her of the intercepted information in response to her GIPA access application is for a "permitted purpose". She submits that the communication to her is for "a purpose connected with" an investigation by the agency or a relevant proceeding in relation to the agency. The Commissioner has provided evidence by Detective Superintendent Scott Cook, the Commander of the Homicide Squad, who states that there is no investigation or prosecution on foot in relation to Keli Lane, those matters having been concluded with her conviction and sentencing.
Dr Ruyters submits that there is nothing in the TIA Act that suggests a proceeding or investigation must be at any particular stage at the time of the relevant conduct so as to engage the exception in s 67. In addition, the fact that a permitted purpose is only required to have a "connection with" a relevant proceeding or investigation means that there need only be a low threshold of connection. In her submission a purpose of complying with freedom of information legislation on the application of a convicted person (who is petitioning the Attorney-General for mercy) in respect of documents created in the course of an investigation would be a purpose "connected with" an investigation or subsequent proceedings.
While it is not necessary for me to decide, given my conclusions above with respect to the ambit of s 67(1), I am not convinced that the arguments put forward by Dr Ruyters have merit. It is tolerably clear that, if she were given access to the intercepted information, that access would be provided to her solely for the purpose of responding to her access request under the GIPA Act. It would not be in respect of any investigation being undertaken by the NSW Police Force nor is it in respect of any proceeding or anticipated proceeding as defined in s 5. The investigation into and prosecution of Keli Lane were finalised many years ago and I doubt that s 67(1) can be read to include such an investigation or proceeding, even if Dr Ruyters could establish a connection between the access application and the investigation or prosecution.
Dr Ruyters is therefore unable to rely on any statutory exemption to the prohibition on communication or disclosure of intercepted information as set out in s 63.

Is there an inconsistency between the GIPA and TIA Acts?

As disclosure of the intercepted information to Dr Ruyters under the GIPA Act would not be for a permitted purpose, the Commissioner submits that there is a clear inconsistency between the GIPA Act and the TIA Act. As set out above, he submits that, as the information is lawfully intercepted information within the meaning of s 6E(1) of the TIA Act, the prohibition in s 63 applies. This means that the Commissioner is prohibited from doing (at least) two things in respect of the information: (a) "making use of" the product; and (b) "communicating" the product to Dr Ruyters.
The term "make use of" is not defined in the TIA Act and therefore bears its ordinary meaning. The Macquarie Dictionary defines "make use of" to mean "to employ; put to use; use for one's own purposes or advantages". "Use" is defined to mean "to employ for some purpose; put into service; turn to account". In Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 the Federal Court used the terms "make use of" and "use" interchangeably. Similarly, the Explanatory Memorandum to the Telecommunications (interception) Amendment Bill 1987, which introduced s 63 into the TIA Act, treated the term "use" as a synonym for "make use of". Section 63 is therefore a general prohibition on the use of the information to which it applies.
The Commissioner submits that sections 13 and 14 of the GIPA Act, insofar as they require the Commissioner to apply the public interest test in respect of the information obtained through the intercepts, purport to require the Commissioner to examine, assess or consider the information that is, use the information, and, possibly, to consult with third parties, for the purpose of determining whether there is an overriding public interest against disclosure of the information. This, he states raises a clear issue as to the consistency between s 63 of the TIA Act and ss 13-14 of the GIPA Act.
Similarly, because the prohibition on "communicating" the TI product in s 63 is, in effect, a general prohibition on disclosure, the Commissioner states there appears to be a clear issue as to the consistency between s 63 and s 9(1) of the GIPA Act which purports to require the Commissioner to provide Dr Ruyters with access to the product (that is, to disclose the product to her) unless satisfied that there is an overriding public interest against disclosure. He states that simultaneous compliance with these competing obligations is not possible.
In this matter the existence of the intercepted information is known and has been broadly identified (including by warrant number). This is not a case where the agency may decide to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact (s 58(1)(f) GIPA Act). Different issues than those present in this case may arise in those circumstances.
The Information Commissioner submits that the Tribunal would need to decide the issue of s 109 inconsistency only if the Commissioner has otherwise failed to discharge his burden under s 105 of the GIPA Act of establishing that the decision is justified. In making this submission, the Information Commissioner refers to a long line of cases which have held that constitutional issues should not be decided unless it is necessary "to do justice in a given case and to determine the rights of the parties" (see, eg, ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140 at [141]; Bell Group NV (in liq) v Western Australia (2016) 90 ALJR 655; Attorney-General (NSW) v Brewery Employees Union (NSW) (1908) 6 CLR 469 at 500).
The Commissioner argues that the Tribunal should address the s 109 issue without consideration of the necessity principle. He states that the cases referred to by the Information Commissioner relate to a court, not a tribunal, and are therefore not authority for the proposition that the Tribunal should only decide a constitutional issue of necessary to do so. In my view, there is no reason why the Tribunal should not take the same approach as the courts, particularly in circumstances where the Tribunal is exercising administrative and not judicial power.
The Information Commissioner submits that the correct approach is to assess whether there are any non-constitutional issues which justify the Commissioner's decision (to refuse access) before assessing whether there are constitutional reasons which justify the decision. She further submits that it is only where no other justification is apparent on the evidence that the Tribunal can proceed directly to the constitutional question.
To that end, the primary submission of the Information Commissioner is that the tasks involved in responding to an access application do not involve "making use of" or "communicating" the information the subject of the request so as to offend s 63(1). She argues that reviewing information to ascertain its character is not a "use" of that information in any ordinary sense. The Information Commissioner made other submissions that the term "use" implies use for a particular purpose and does not encompass uses for the purpose of performing a statutory duty imposed by law. It is not clear what those submissions were based upon and, in my view, the terms "make use of" and "use" should be given their ordinary meaning.
If an agency has received a valid access application, as in this case, the agency "must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received" (s 53(2) GIPA Act). I agree with the Information Commissioner that nothing in the task of searching for information necessarily involves any making use of information within the meaning of the TIA Act. Although, I do not think the Information Commissioner is correct in stating that "reviewing" information to ascertain its character is not a use of that information. It is the identification of information as intercepted information that is the key. Identification of information as such can be achieved without reviewing, reading or listening to information.
It is readily foreseeable that information obtained through the use of telephone intercepts may well be information relating to third parties being persons other than the person making the access request. In such circumstances under s 54 and agency is required to consult with the person before providing access to certain information relating to that person. It is arguable that an agency would be required to either make use of the information or communicate it in order to fulfil its obligations under s 54. However, under s 54(1) an agency is only required to take such steps as are reasonably practicable to consult with a person if it appears that: 1. the information is of a kind that requires consultation under this section, and 2. the person may reasonably be expected to have concerns about the disclosure of the information, and 3. those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
The Commissioner submits that "making use of" encompasses reading and listening to the intercepted information. In all likelihood that is right. The Information Commissioner concedes that there may be some circumstances where it is impossible for an agency to form the state of mind referred to in s 54(1) without making use of the information within the meaning of the TIA Act. In my view, this would include reading or listening to the intercepted information in order to ascertain its content. The Information Commissioner submits that in those circumstances, in complying with its obligations under the TIA Act, an agency will not be able to form the opinion in s 54(1), in particular that in s 54(1)(a), and will therefore not be under a duty to consult. That may well be true as it will not be possible to in fact identify third parties who may be affected. In other circumstances, if the agency is of the opinion that matters (a) to (c) in s 54(1) are present, then it will not be "reasonably practicable" to consult with third parties as to do so would cause the agency to contravene s 63(1) of the TIA Act.
The Commissioner submits that, in order to undertake the balancing exercise required by s 13 of the GIPA Act, he is required to make use of the information. Other than to make a statement that he is required to examine, assess or consider the TI product in order to determine whether there is an overriding public interest against the disclosure, the Commissioner does not explicitly state what he is required to do in a practical sense which would amount to making use of the information, although I assume he means that the information would be read or listened to. As can be seen from the above discussion, searching for information which falls within the scope of the access request and dealing with the requirement to consult third parties does not necessarily involve making use of the information. It is difficult to ascertain how determining what are the public interest considerations for and against disclosure and then balancing those would of necessity involve use of the intercepted information itself. Public interest considerations can be sufficiently broad so they do not require an examination of the detail of the information to which access is sought. A case in point is clause 6 of the Table to s 14 of the GIPA Act, which is discussed in further detail below.
Turning now to communication, in considering the access application communication of the intercepted information may arise in two circumstances: 1. communication within the NSW Police Force; and 2. communication to the access applicant.
The Commissioner argues that, in order to deal with the access application, it would be necessary for the intercepted information to be communicated from the section within the NSW Police Force that holds the product (the Telecommunications Interception Unit) to an officer authorised to process GIPA applications in the relevant section of the NSW Police Force (InfoLink). The Commissioner states that this single communication would breach s 63(1) and expose officers to criminal sanctions. The Information Commissioner states, and I agree, that if the agency is concerned that information covered by an access application is subject to s 63(1), then the agency can limit the staff who assist in responding to the request, thereby avoiding the risk of unlawful communication. The fact that the NSW Police Force has decided to structure itself in a particular way is not decisive of whether an unlawful communication of the intercepted information will necessarily occur in circumstances where alternative structures are available.
As to communication to the access applicant, in this case, Dr Ruyters, the GIPA Act does not require the Commissioner to provide Dr Ruyters with access to the intercepted information as a matter of law. It is only in circumstances where an agency finds that there is no overriding public interest consideration against disclosure that an access applicant must be provided with access to information. If that is the case then it may well be that there is an operational inconsistency between the provisions of the GIPA and TIA Acts which would invoke consideration of s 109 of the Constitution.
The matters set out in the preceding paragraphs demonstrate that the GIPA Act and the TIA Act can be read together in such a way as to not offend s 109 of the Constitution. Accordingly, Dr Ruyter's access application may well be determined without reaching the constitutional issue. It is only if that cannot be done that the inconsistency question will need to be addressed.

How should the application be determined?

The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
Dr Ruyters and the Commissioner submit that the access application should be remitted to the Commissioner for determination. The Commissioner notes that the previous basis upon which access to the information was refused did not involve application of the public interest test as the Commissioner was (erroneously) of the opinion that the information was excluded information. The Commissioner states that he should be given an opportunity to do so. Dr Ruyters' submission seems to be predicated on the belief that the Tribunal will need to examine voluminous records (documents or recordings) which are not in fact before the Tribunal and remittal will relieve the Tribunal from having to undertake that course. The Information Commissioner submits that it would be consistent with the scheme established by the GIPA Act for the matter to now be determined by the Tribunal.
I am mindful of the length of time since the access application was made (and mindful of the part I have played in the delay). In this matter it is necessary to determine whether there is an overriding public interest against disclosure because there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. At the conclusion of the dismissal application brought by the Commissioner in August 2019 the parties were directed to provide evidence and submissions and were on notice that all matters were to be canvassed at the substantive hearing. The Commissioner and Dr Ruyters have in fact made submissions on the application of the public interest test in this case. While I appreciate the submissions made by the Commissioner that in the ordinary course of events the Tribunal is required to engage with the information the subject of the access application, in this matter I am in a position to make decision on the basis of the evidence before me without the necessity of analysing each of the conversations and text messages within the scope of the access application.

The public interest test

As set out above, the Tribunal's task in determining whether there is an overriding public interest against disclosure is to determine if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

Public interest considerations in favour of disclosure

There is a general presumption in favour of disclosure of government information set out in s 12(1) of the GIPA Act. The public interest considerations in favour of disclosure are, of course, not limited. There is no doubt that much of the information, being conversations and text messages to which Ms Lane was a party, is personal to Ms Lane. (There is also no dispute that this application is made on her behalf.)

Personal factors of the application

Section 55(1) of the GIPA Act provides that, in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account the following "personal factors of the application": 1. the applicant's identity and relationship with any other person, 2. the applicant's motives for making the access application, 3. any other factors particular to the applicant.
The personal factors of the application may not be taken into account as considerations against disclosure in respect of cll 1, 6 or 7 of the Table.
Section 55(2) of the GIPA Act provides that the personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
Part of the motivation behind the access application by Dr Ruyters is that release of the information could assist Ms Lane in exercising her rights in pursuing her Petition for Mercy.

Public interest considerations against disclosure

The Commissioner has identified two public interest considerations against disclosure as set out in the table to s 14 of the GIPA Act on the basis that disclosure could reasonably be expected to: 1. reveal an individual's personal information (s 14 Table cl 3(a)); and/or 2. constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions (s 14 Table, cl 6(1)).
Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).

Personal information

"Personal information" is defined in cl 4(1) of Schedule 4 to the GIPA Act to be "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion". To "reveal" information means to "disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure" (cl 1 of Schedule 4).
Detective Superintendent Kopsias states that the Telecommunications Interception Unit, which is a unit within the High Tech Crime Branch which he commands, operates a specialist facility for the legal interception and monitoring of telecommunications services. While he has not read or listened to the material the subject of this access request, Detective Superintendent Kopsias states that during the course of his career he has listened to or read the transcripts of many intercepts. He states that, on the basis of his experience, the intercepted information would be likely to reveal the personal and private information of persons involved in the activations.
The information sought by Dr Ruyters in this application is not information that has already been publicly disclosed. It is clear that persons whose conversations or text messages were intercepted would necessarily include persons other than Keli Lane. While Ms Lane may have consented to the release of her personal information to Dr Ruyters, the same cannot be said of the other parties to the conversations and text messages that were intercepted. Because of the very nature of telephone intercepts, none of the persons whose conversations and text messages were intercepted would have been aware they were being intercepted and recorded. In those circumstances, it is extremely likely that the intercepted communications contained personal information, some of which may be highly sensitive.

Secrecy provisions

Much has been set out above about s 63(1) of the TIA Act. There is a general prohibition in that section against the disclosure of intercepted information. It matters not that there may be some exceptions to that general prohibition as cl 6(1) requires a decision-maker to disregard that fact when considering whether it could reasonably be expected that disclosure would contravene a secrecy provision. I am satisfied that s 63(1) is a provision of a Commonwealth Act that prohibits disclosure of information such that cl 6(1) is relevant.

Is there an overriding public interest against disclosure of the information?

There is no doubt that the fact that the information sought, and which was obtained without her consent or knowledge, is Ms Lane's personal information carries some weight.
While s 55 provides that motives are relevant to the issue of determining where on balance the public interest lies, as was stated in Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [60], that motive must be established on reliable evidence and not by mere assertion. In that regard, nothing other than the fact of the Petition for Mercy having been made was put which would indicate that release of the information could assist Ms Lane in exercising her rights. In any event, personal factors are not relevant when considering whether disclosure of the information could reasonably be expected to have the effect referred to in cl 6(1) of the Table to s 14.
The TIA Act goes to considerable lengths to protect information obtained through the use of telephone intercepts. I accept that such information can be and is of particular value to investigations conducted by law enforcement agencies throughout Australia, including the NSW Police Force.
The policy considerations behind the prohibition on disclosure are readily identifiable. The TIA Act, for good reason, prohibits the interception of communications over a telecommunications system without the knowledge of the person making the communication. The exception is if such interception is authorised by a properly obtained warrant. It would be out of keeping with the general prohibition on interceptions if intercepted information obtained either lawfully or unlawfully could be readily disclosed. Significantly, serious criminal penalties apply to convictions for any contravention of s 63(1) of the TIA Act.
In my view, significant weight should be given to the policy considerations behind the prohibition on disclosure of intercepted information and well as to the particular provision prohibiting disclosure. Release of the intercepted information the subject of this application would be a direct contravention of s 63(1) of the TIA Act.
I am satisfied that in this matter, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of the disclosure. The correct and preferable decision, therefore, is to affirm the decision under review, albeit for different reasons.

Orders 1. The decision under review is affirmed.

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: 26 February 2021

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (1)

Cases Cited (11)

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