Sawari v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-10-11

Background

These proceedings concern a request (the GIPA request) that Mozghan Sawari (the applicant) made to the Commissioner of Police, NSW Police Force) on 16 March 2023 for the release of information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
The applicant sought access to the following documents: I seek evidence contained in the prosecution brief of evidence prepared with respect to the sexual assault charge(s) brought against my husband (name and date of birth provided) which was heard at a court in the city of Sydney on 7 April 2017 at which court he was convicted and sentenced to 6 years imprisonment. I am the wife of (the named person). We have been separated since his conviction and I have applied for a divorce but at this time we remain legally married. I was not the victim in relation to the sexual assault charge. However, in relation to my partner visa application I have made a 'relevant family violence' application to the Department of Home Affairs and I seek written documents from the prosecution brief of evidence, written confirmation of his conviction and sentence and the criminal record of (the named person) to submit to the Department of Home Affairs with respect to my visa application.

Decision at first instance

On 17 April 2023, the respondent issued a Notice of Decision under the GIPA Act and decided not to provide access to the information sought on the basis that it was excluded information pursuant to Sch 2 of the GIPA Act.

Application for administrative review

On 14 January 2023, the Tribunal received the current application for administrative review which raised the following grounds: (the applicant) is seeking official documentation to verify the circumstances of the offence(s) and charge(s), conviction(s) and sentence of her estranged husband (name provided). She has an ongoing partner visa application with her husband. But as the events surrounding the criminal matter(s) caused estrangement and separation, and the couple are divorcing, she must establish relevant family violence in order to now be granted this visa. The Department of Home Affairs requires official written documents to be submitted by (the applicant) on her partner visa application.

Procedural matters

On 3 July 2023, Senior Member Higgins conducted a case conference at which Ms Ryburn appeared for the applicant and Ms Meikle, Crown Solicitor's Office, appeared for the respondent. The Senior Member ordered that if the matter did not settle, the respondent was to give to the Tribunal and (the applicant) all evidence including statements, documents and submissions on or before 21 July 2023. She listed the matter for a further case conference on 31 July 2023.
On 31 July 2023, Senior Member Perrignon conducted the further case conference.. He listed the matter for mediation on 17 August 2023. He ordered the respondent to invite the DPP to attend the mediation by 2 August 2023 and to advise the applicant's solicitor or any response to that application. He granted the parties leave to approach the Registrar to seek an alternative mediation date, if required, and listed the matter for a further case conference on 28 August 2023.
On 17 August 2023, the Mediator reported that the applicant's solicitor had requested an adjournment and that she did not attend because she thought that the DPP was to attend and the DPP was unable to attend the listing. The applicant's solicitor then had difficulty connecting by VMR and requested an adjournment to the first week of September 2023.
On 22 August 2023, Principal Member Simon ordered that the Tribunal would consider whether to relist the matter for mediation at the further case conference on 28 August 2023.
On 28 August 2023, Senior Member Higgins made the following orders: (1) the applicant was to file and serve all evidence, including statements, documents and submissions, by 18 September 2023; (2) the respondent was to file and serve all evidence in reply and submissions by 3 October 2023; and (3) the matter is listed for hearing on 11 October 2023.
On 10 October 2023, the respondent filed an Application for Miscellaneous Matters, which sought the following orders: 1. Dismissal of the proceedings under s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act); and 2. Dispensing with the hearing of the application under s 50(2) of the NCAT Act and determining the application on the papers.
The respondent sought these orders on the following grounds: There has been a want of prosecution of this proceeding. The applicant has failed to file and serve her evidence and summary of legal arguments in accordance with the Tribunal's orders dated 28 August 2023, or take steps to advance this proceeding which was commenced on 14 June 2023. A supporting affidavit with further details is attached to this application.
On 10 October 2023, the Registrar advised the parties that the Miscellaneous Application would be determined by the Tribunal at the commencement of the hearing on 11 October 2023.

The hearing

The matter came before me for hearing on 11 October 2023, at which Ms Ryburn appeared for the applicant and Ms Meikle, Crown Solicitor's Office, appeared for the respondent.
On 11 October 2023, the applicant filed and served the following documents by way of email: 1. Applicant's submissions dated 10 October 2023; and 2. Affidavit of the applicant sworn 10 October 2023.
When the matter commenced, the Tribunal asked Ms Ryburn why the applicant failed to comply with the Tribunals' orders regarding the filing and service of evidence and submissions. She replied to the effect that the applicant had been unable to attend her office to swear her affidavit and that the lateness of the submissions was due to the respondent's solicitor and her representations. She also stated that the applicant requires evidence to supply to the Department of Home Affairs with respect to a partner visa application and that she needs verification with respect to her ex-husband's criminal offences in order to satisfy the Department's definition of "family violence".
Ms Meikle did not object to the admission of the applicant's affidavit and it was admitted and marked Ex A. The applicant was not required for cross-examination.
The respondent replied upon the affidavit of Ian Steptoe dated 21 July 2023. There was no objection to this affidavit and it was admitted and marked Ex 1. Mr Steptoe was not required for cross-examination.

Respondent's opening argument

Ms Meikle stated that the reviewable decision in this matter is that of the respondent dated 17 April 2023. The GIPA request sought access to information that is excluded information of another agency (the DPP) and the DPP did not consent to the release of that information to the applicant. The DPP noted that while the applicant's ex-husband was the perpetrator of crimes, the applicant was not a victim of those crimes.
Ms Meikle stated that the respondent provided the applicant with a copy of the Judgment published by the Court of Criminal Appeal and a Summary of the perpetrator's offence on an informal basis.

Applicant's opening argument

Ms Ryburn stated that the applicant now seeks access to statements provided by member of the NSWPF to the DPP. She argued that if the Tribunal considers that there are significant public interest considerations in favour of the disclosure of that information, it should either order disclosure or remit the matter to the respondent for reconsideration, and that there are significant personal factors of the applicant that apply under s 55 of the GIPA Act.
The Tribunal asked Ms Ryburn whether any access application had been made directly to the Director of Public Prosecutions? She replied "No".

Respondent's evidence

Ian Steptoe provided a witness statement dated 21 July 2023. He stated that he is a Senior Advisory Officer for the InfoLink Unit of the NSWPF and, as part of that role, he is responsible for managing GIPA requests or internal reviews conducted under the GIPA Act.
Mr Steptoe stated that briefs of evidence are prepared by the NSWPF for provision to the Office of the Director of Public Prosecutions (ODPP) to assist it to prosecute the charges the subject of the brief. Evidence contained in a brief of evidence would include such things as witness statements, including statements made by police officers, records of interview and other evidence such as photographs. The Police file relating to the criminal charges laid against the applicant's ex-husband, which contains copies of evidence included in the brief of evidence prepared for the ODPP, was located as a result of reasonable searches. He outlined what was located in his confidential statement filed on 21 July 2023.
On 11 April 2023, the respondent sent an email to the GIPA team at the ODPP asking whether it consented to disclosure of the requested information to the applicant. On 12 April 2022, a member of the GIPA team at the ODPP replied that consent to disclosure was refused.
Mr Steptoe stated, relevantly: Request for Agreed Facts 13. It is my understanding that, via her representative, the Applicant now seeks access to the "ODPP Agreed Facts". 14. From my review of the NSW Police Force's file in relation to (the applicant's ex-husband), the NSW Police Force does not hold an agreed facts that gave rise to (his) conviction. 15. There is a published judgment in the Court of Criminal Appeal in relation to (his) sentence Appeal: Citation provided - [2018] NSWCCA 15. This decision outlines the facts as recorded by the Primary Judge. 16. On 16 July 2023, I instructed Ms Meikle to provide Ms Ryburn with a link to the published decision…. Request for Conviction, Sentence and Criminal Record 17. The Applicant also seeks access to "written confirmation of his conviction and sentence and the criminal record of (the applicant's ex-husband)". 18. The outcome of a criminal prosecution is automatically referred to the NSW Police Force by way of an entry on the Computerised Operational Policing System (COPS). There is no separate "written confirmation of conviction and sentence" document held by the NSW Police Force. 19. On 4 July 2023 and for abundant caution, I conducted a search of the NSWPF electronic Records Management System using the defendant's name in a key word. Search for a certificate of conviction or some other written confirmation of the convictions. I was unable to locate anything which met this description. 20. On 12 July 2023, I conducted a search for a criminal history of (the applicant's ex-husband) from the COPS system and obtained a report. I removed all reference to charges or convictions other than those which relate to the proceedings the subject of the access application. I instructed Ms Meikle to provide a copy of (his) criminal history to Ms Ryburn, which she did on 12 July 2023.
Otherwise, Mr Steptoe stated that all documents responsive to the scope of the GIPA request would have been captured by the searches that he conducted.
The applicant relied upon an affidavit which she affirmed on 10 October 2023. She stated that on 4 April 2017, she applied for a permanent partner visa (subclass 100) and this remains under process and is currently unfinalized. She separated from her ex-husband on 7 April 2017, following his conviction and sentencing on charges of sexual intercourse without consent and assaults with act of indecency. She filed a divorce application on 11 April 2023 and her marriage was terminated on 13 August 2023.
The applicant stated that she is in a de-factor relationship with a partner, with whom she has three children, and that they married religiously. She is hoping to become a permanent resident of Australia, but her subclass 100 permanent partner visa can no longer be granted on the basis of her relationship with her ex-husband. Rather, the Department of Home Affairs will make a decision based on whether they consider that she was subject to "relevant family violence" causing her marriage to break down.
However, as she was not the direct victim of the offences for which her ex-husband was convicted, the decision of whether she meets the regulatory definition depends on the determination of the immigration case officer based on material such as opinion of professional psychologist, sociologist and material from police etc.
The documentary requirement of the Department of Home Affairs are listed in policy and described as evidentiary requirements of either judicial or non-judicial sub-categories. She must satisfy the non-judicial subcategory as she is not the direct victim.
The applicant stated, relevantly: 13. My Solicitor, Anna Ryburn has submitted to the Department of Home Affairs both the published Court Judgment of the Court of Criminal Appeal of 16 February 2018 (citation set out) and his Printout of Criminal History regarding the offences committed by my ex-husband. 14. For the making of a claim for family violence as a reason for a visa to still be granted despite the relationship breakdown, the Department has created what it calls Family Violence Evidentiary Requirements. The requirements are divided into "Judicial evidence" and "non-judicial evidence". As there is no conviction with respect to which I am the direct victim in a criminal matter, I need to address the "non-judicial evidence" requirements for the purpose of my visa processing. The "non-judicial evidence" seeks two independent professional or expert opinions in addition to a statutory declaration from myself. 15. In the case of material related to criminal matters the policy stipulates that a report, record of assault, witness statement or statutory declaration made by a police officer of a State of Territory identifying the alleged victim, the alleged perpetrator and the details of the incident/s of family violence is required. 16. While I have sought and provided a report from an independent expert, Psychologist (name provided) regarding the "relevant family violence" and provided some details regarding the criminal offences of my ex-husband, I have not as yet satisfied the policy non-judiciary evidentiary required of a document authored by a police officer. 17. This is the reason why my solicitor has been seeking from the Commissioner of Police in this matter: a. A COPS Charge Summary report; b. ODPP agreed facts; or c. Evidence in the form of a report, record of assault, witness statement or statutory declaration that is made by an NSW police officer in the course of prosecuting my ex-husband. 18. I appreciate the privacy requirements relating to the victims of crime and for this reason I do not object to provision of a document authored by police in relation to prosecution of my ex-husband to be redacted. The Department too can object to the victim/victims' names being redacted. I was not the victim of those crimes. 19. What I hope to achieve it (sic) the technical satisfaction of Department policy by provision of a document authored by a police officer whom was part of prosecuting the criminal matters against my ex-husband.

Confidential hearing

I confirm that the central dispute in this matter is whether the documents that the respondent lodged with the Tribunal on a confidential basis are subject to a conclusive presumption against disclosure under cl 6 of Sch 1 to the GIPA Act on the basis that they are excluded information of the ODPP.
In order to properly consider and determine these issues, I determined that it was necessary to conduct a confidential hearing in the applicant's absence pursuant to s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
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At the completion of Ms Meikle's open submissions, the Tribunal concluded the confidential hearing.

Resumption of the open hearing

When the open hearing resumed, the Tribunal heard submissions from the parties.

Respondent's submissions

I note that the respondent filed written submissions on 21 July 2023. After setting out the background to the current matter and the information that the respondent provided to the applicant on an informal basis, the respondent stated, relevantly: Administrative review 15. Under s 80(d) of the Act, a decision by an agency to refuse to provide access to information in response to an access application is a reviewable decision. 16. Pursuant to s 100 of the Act, a person who is aggrieved by a reviewable decision of an agency may apply to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). The task of the Tribunal on administrative review is to determine the correct and preferable decision: s 63(1) of the ADR Act. The Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2) of the ADR Act. 17. In considering an application for review, the Tribunal may have regard to any relevant material before it at the time of the review" Sharpe v Commissioner of Police, NSW Police Force [2023] NSWCATAD 178 at [19] citing Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179. 18. In determining the correct and preferable decision, the Tribunal is not limited to considering the grounds relied on by the original decision-maker: Public Service Association v Director General, Premier's Department [2002] NSWADT 277 at [57] and [59].
The respondent addressed the relevant provisions of the GIPA Act as set out in ss 3, 5, 12(1), 13, 14, 15, 58, 74 and 75, cl 6 of Sch 1 and Sch 2.
In particular, the respondent noted that cl 6(1) of Sch 1 of the GIPA Act states that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that constitutes "excluded information of an agency, other than information that the agency has consented to the disclosure of".
Clause 6(2) of Sch 1 of the GIPA Act states that before an agency decides to refuse disclosure on the basis that the access application seeks excluded information, the agency is "required to ask the other agency whether the other agency consents to disclosure of the information".
Schedule 2 of the GIPA Act sets out what constitutes "excluded information" of particular agencies, which includes "judicial and prosecutorial information" of the ODPP relating to its prosecuting functions.
The respondent stated that its position is that there is a conclusive presumption against disclosure of the Brief of Evidence documents without the consent of the ODPP (and this has not been given). It does not matter that the Brief of Evidence documents also reside with the respondent. In Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127 at [27], the Tribunal held that reproductions of excluded information are also subject to the conclusive presumption, because the conclusive presumption "would be rendered largely redundant if it did not extend to secondary reproductions of the source information, as disclosure of the reproduction will reveal the contents of the information. in those circumstances, it is also excluded information:.
The respondent argued that the Brief of Evidence documents relate to the ODPP's prosecutorial functions. "Relates to" have been construed as words with widest import: Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59].
While there is no definition of "prosecuting functions" in the GIPA Act, Pt 3 of the Director of Public Prosecutions Act 1986 (NSW), provides that the principal functions and responsibilities of the Director are to "institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and District Court", and to act in any appeals in any court in respect of any such prosecution: s 9(3).
In DF v Attorney General's Department [2002] NSWADT 164 at [25], the Tribunal considered the equivalent provision under a previous iteration of the GIPA Act and noted: The 'functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal).
This approach was adopted in Miller v Director of Public Prosecutions [2012] NSWADT 38 at [27], where it was held that "prosecuting functions" should be afforded a wide meaning. The Tribunal found that documents relating to a complaint about the ODPP's exercise of its prosecuting functions were sufficiently connected to such exercise as to be excluded information.
In this matter, as deposed to by Mr Steptoe, the disputed information forms part of a Brief of Evidence prepared for the ODPP for the purposes of prosecution of the applicant's ex-husband. Those proceedings were prosecuted by the ODPP and it can be readily inferred that the disputed information was pivotal to the ODPP's exercise of its prosecutorial functions. This position is supported by the Tribunal's decision in Betzis v Commissioner of Police [2020] NSWCATAD 71, which found that a brief of evidence provided by the NSWPF to the Coroner's Court was "excluded information" within the meaning of cl 6 of Sch 1 and cl 1 of Sch 2 of the GIPA Act. The Tribunal noted: The fact that the document was prepared by the NSW Police Force arising out of its investigations… does not detract from its character as information prepared for and relied upon by the Coroner in the exercise of her judicial function under the Coroner's Act.
Records held by the Coroner's Court relating to its "judicial functions" attracts the same protections under cl 2 of Sch 1 of the GIPA Act as the records of the ODPP relating to its prosecutorial functions. The conclusive presumption against disclosure therefore applied in Betzis, as it applies in this matter.
Clause 6(2) of Sch 1 of the GIPA Act provides that the conclusive presumption against disclosure applies unless consent has been obtained from the agency whose information it is. Consent was sought by the respondent on 11 April 2023 and on 12 April 2023, the ODPP refused to consent to disclosure of the disputed information.
The respondent argued that even if there was no conclusive presumption against disclosure of the disputed information, public interest considerations mitigate against disclosure. It therefore raised the following public interest considerations.

Public interest considerations in favour of disclosure

The respondent noted that the applicant made the GIPA request to support her claim of family violence to the Department of Home Affairs in relation to her immigration status in Australia. She stated that the requested information was to be provided to the Department of Home Affairs as evidence and that it was not to be used for any other purpose. However, there does not appear to be any public interest motivation beyond those matters.

Public interest considerations against disclosure

The respondent relied upon cl 1(d) to the table in s 14(2) of the GIPA Act and argued that disclosure of the disputed information would reasonably be expected to prejudice the supply to an agency of confidential information. In this case, the information was provided by the victims of the crimes that were perpetrated by the applicant's ex-husband.
In the context of the former Freedom of Information Act, "prejudice" was found to mean "detriment or disadvantage": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. Further, in Desmond v Commissioner of Police, NSW Police Force [2003] NSWADT 231 at [16], the Tribunal recognised that one species of prejudice occurs when supply of information would be impeded if there are doubts as to whether that information was able to be provided to police on a confidential basis. As noted in Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [69], Smart AJ stated: 69. … There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police. This was not a point raised in the reasons of the Tribunal or the Appeal Panel. It is a point for the future. On the other hand there is a strong public interest in access to information held by a government agency.
It may be readily inferred that provision of information about alleged crimes by the victims is provided on a confidential basis, and there is an expectation that confidentiality will be maintained. This is especially the case where the allegations concern sexual assault. Much can be taken from the fact that witness statements are not published and the sexual assault crimes (as those in this matter) are given pseudonyms in published judgments, as it is an offence under s 578A of the Crimes Act 1900 (NSW) to publish the names of victims in certain sexual offences.
If briefs of evidence were subject to disclosure in response to a GIPA request, police could not assure victims of sexual assault that their evidence can be provided confidentially and will not be published to members of the public. As Smart AJ inferred in Simring, this outcome would impede the flow of information to the NSWPF and in turn, the NSWPF's ability to gather evidence for the purposes of detecting, investigating and prosecuting such offences. Simply redacting witnesses' names would be insufficient as the brief od evidence contains a significant amount of "personal information" beyond the victims' identifying information.
The respondent also relied upon cl 1(f) to the table to s 14(2) of the GIPA Act and argued that disclosure of the disputed information could reasonably be expected to prejudice the effective exercise of the agency's functions. The disclosure of this information would cause prejudice to the NSWPF by revealing its methodology to detect and investigate crimes. The statements of the NSWPF Officers in the brief of evidence outline the investigative process undertaken by the NSWPF in investigating the criminal conduct of the applicant's ex-husband. Disclosure could reasonably be expected to lead to individuals to utilise the information to alter their behaviour to avoid detection of criminal behaviour.
The NSWPF's mission is to work with the community to reduce violence, crime and fear and to provide police services for NSW, which includes the prevention and detection of crime: s 6 of the Police Act 1996 (NSW). If the NSWPF is unable to effectively investigate crime, this would substantially hamper its ability to fulfil its statutory functions of providing police services for NSW.
The respondent also relied on cll 3(a) and 3(b) of the table to s 14(2) of the GIPA Act, which provide: Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,
The respondent argued that the disputed information clearly contains a significant amount of personal information of the victims. The published judgment (citation [2018] NSWCCA 15) suppressed the victims' names and did not refer to a lot of this information.
Clause 4(1) of Sch 4 of the GIPA Act defines "personal information" as: … 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.
The Information Commissioner has published guidelines to assist in determining whether there is an overriding public interest against disclosure, pursuant to s 15(b) of the GIPA Act (the Guidelines). These include samples of common personal information including: (a) person identifying information; (b) financial and employment information; (c) photographs and CCTV footage of the person; (d) information about a person's family life; and (e) medical and health information. The disputed information clearly identifies to persons to whom it relates and is replete with information falling within these categories of the Guidelines.
Disclosure would also be contrary to the information protection principles (IPPs) stated in ss 8 to 19 of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act). The relevant principles are: Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
In this matter: 1. The disclosure (to substantiate issues of family violence against the applicant for the purposes of an immigration application) is not directly related to the purpose for which the information was collected (which was to substantiate an allegation of sexual assault etc. unrelated to the applicant); 2. There is no basis to conclude that the victims would not object to the disclosure; and 3. The disclosure is not necessary to prevent or lessen a serious or imminent threat to the life or health of anyone.
In relation to the request for "ODPP Agreed Acts", the respondent stated that it does not hold a copy of any agreed facts that were tendered in the District Court proceedings. Further, the information contained in those documents could readily be obtained from information that has been provided to the applicant, namely the published judgment of the Court of Criminal Appeal and the criminal record of her ex-husband.
Therefore, the respondent argued that the correct and preferable decision is to refuse access to the disputed information because there is an overriding public interest against its disclosure; s 58(1)(d) of the GIPA Act.
I note that the respondent did not indicate the weight that should be given to the considerations in favour of and against disclosure and that it did not undertake any balancing of competing public interest considerations in its submissions.

Applicant's submissions

The applicant filed written submissions on 10 October 2023, which I have summarised as follows.
The applicant argued that the disputed information is being sought in the public interest of assisting a Commonwealth Government Department in its work. It is a false premise to characterise the GIPA request merely as a task of weighing the importance of a government mandate against the curiosity of a mere individual and there is not an overriding public interest against disclosure. The applicant has no objection if the respondent agrees to forward the documents directly to the Department of Home Affairs, rather than to the applicant's solicitor.
Whilst the applicant was not the direct victim of the crimes perpetrated by her ex-husband, she was indirectly impacted by the charges and subsequent convictions. The trauma and emotional distress that she endured as a result of those events was real and led to the breakdown of her marriage. This factor is of significant relevance to her partner visa application and it has had a profound impact on her life, family and overall circumstances.
In weighing the public interest against disclosure against the public interest in favour of disclosure, it is essential to consider that the disputed information directly relates to a visa application and its outcome has serious implications for the applicant's future in Australia and her well-being as her souse and three children are Australian citizens. Access is critical for the Department of Home Affairs to make a fair and informed decision on the visa application and it is in the public interest to ensure a just and equitable immigration process.
The applicant argued that the GIPA request for material forming part of the ODPP's brief will not: (a) cause prejudice to the supply to an agency of confidential information; (b) cause prejudice to the effective exercise by an agency of the agency's functions; and (c) prejudice a person's right to procedural fairness revealing unsubstantiated allegations about a person. The crimes committed by the applicant's ex-husband have already been prosecuted, convictions obtained and his sentence has been served in full. Material released would only serve to record some details of the facts underpinning the convictions as a historical fact to a Federal Government Department which needs this information in the course of its work.
The applicant argued, relevantly: Is the failure to consent to disclosure of this information an attempt to place the confidentiality of the victims of crime above the public interests of another vulnerable woman in the general public or the interest of another section of government? Can this not be resolved by redaction or by direct disclosure to the Department of Home Affairs? Or is this an attempt to hold rights of privacy of the convicted person as paramount over the needs of a member of the public, his ex-wife, and another Government Department, the Department of Home Affairs? And if this is the case, how is this argument persuasive in any measure? If there are any legitimate concerns over the applicant or the applicant's representative knowing detail so the crimes which were committed, can this not be resolved by material being forwarded directly by the Commission (sic) of Police to the Department of Home Affairs with respect to the applicant's partner visa application? 5. Considering the circumstance, it is essential to explore alternative measures to address any legitimate concerns related to disclosure. This could include redaction of sensitive information providing access to non-sensitive portions of statement(s), or placing restrictions on the use and dissemination of the information to safeguard public interests. The applicant has no interest in the methods of police or the process of prosecutions and her needs will be met by the provision of one document (redacted regarding identity of any witness/victim) technically satisfying the policy of evidentiary requirements and chosen by the respondent and provided directly to or via the applicant's representative to the Department of Home Affairs under orders for disclosure only for that purpose. In conclusion, I respectfully submit that in this case, the refusal of the respondent to disclose the disputed document(s) hampers the applicant's ability to present her case to the Department of Home Affairs and the Department of Home Affairs' ability to come to a adequately considered conclusion and may lead to an unjust and inequitable outcome. This is a case wherein public interest warrants modest disclosure sufficient for the task. We kindly request that the Tribunal consider these arguments when evaluating the refusal to disclose the document(s) in question, keeping in mind the principles of fairness, justice and the unique circumstances of this immigration matter. Please overturn the decision and allow the applicant to obtain and submit or otherwise arrange for submission in support of her visa application, a piece of police authored evidence which technically satisfies Departmental policy applicable to her matter.

Respondent's oral submissions

Ms Meikle relied upon the respondent's written submissions. She confirmed that the disputed information is information of the ODPP which was created as part of its prosecutorial functions. Therefore, cl 6(1) of Sch 1 of the GIPA Act applies and there is a conclusive presumption against disclosure of the disputed information.
Ms Meikle confirmed that the respondent sought consent to disclose the disputed information from the ODPP, but the ODPP refused to consent to disclosure. She also sought consent from the ODPP in the course of her preparation for this hearing, but consent was refused. She confirmed that a decision by the ODPP to refuse consent is not a reviewable decision under the GIPA Act.
As there is a conclusive presumption against disclosure of the disputed information, the respondent is not required to balance competing public interests in favour of and against disclosure. In Yee v Medical Council of New South Wales [2017] NSWCATAD 370, the Tribunal stated: 41. The effect of a conclusive presumption of an overriding public interest against disclosure of information is that an agency is not required to balance the public interest test before refusing access to that information.
However, if the Tribunal is not satisfied that there is a conclusive presumption against disclosure of the disputed information, the respondent relies upon cll 1(d), 1(f), 3(a) and 3(b) of the table to s 14(2) of the GIPA Act and relies upon its written submissions. The public interest considerations against disclosure outweigh those in favour of disclosure.
In response to the applicant's written submissions, Ms Meikle stated that the respondent has no choice but to consult with the ODPP and that as the ODPP refused to consent to the release of the disputed information, it has no recourse but to refuse to disclose it.
Further, s 73 of the GIPA Act effectively provides that disclosure of information under the GIPA Act is disclosure to the world at large. No restrictions can be placed upon its subsequent use or dissemination by the applicant.
Accordingly, the correct and preferable decision is to affirm the reviewable decision.

Applicant's oral submissions

Ms Ryburn argued that cl 6(1) of Sch 1 of the GIPA Act refers to "prosecutorial functions", but this should not apply to all of the material that is sought in the GIPA request. "Prosecutorial functions" should be given "a limited meaning" and it should be restricted to "procedures & methods". Therefore, not all of the ODPP's material is excluded information.
The Tribunal asked Ms Ryburn if she was aware of any authorities that supported her submission. She replied "No".
Ms Ryburn argued that where information is sought by another Government Department, there is a public interest in favour of providing it and the Department of Home Affairs will not obtain records directly from an agency with respect to an application about family violence. She expressed concern that the Criminal History that was provided informally by the respondent probably will not suffice.

Respondent's submissions in reply

Ms Meikle stated that the decisions in DF and Betzis apply provide definitions of prosecuting/judicial functions and these do not support the applicant's submission.

Decision reserved

Upon completion of oral submissions, the Tribunal reserved its decision.

Legal principles

The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. This states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

The GIPA Act

In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
I am satisfied that the decision dated 17 April 2023 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.
However, I note that by operation of cl 6(3) of Sch 1 of the GIPA Act, the ODPP's decision to refuse to consent to the disclosure of its excluded information is not a reviewable decision.
In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below. 1. 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. 2. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 53. Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An 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. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) 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. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
Clause 6 of Sch 1 of the GIPA Act provides:
6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
Sch 2 of the GIPA Act provides: Schedule 2 Excluded information of particular agencies Note - Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. 1 Judicial and prosecutorial information …The Office of Director of Public Prosecutions - prosecuting functions…

Excluded information

Having reviewed the disputed information during the confidential hearing, I am satisfied that the disputed information relates to the prosecuting functions of the ODPP, such that cl 1 of Sch 2 of the GIPA Act applies and, pursuant to cl 6(1) of Sch 1 of the GIPA Act applies, it is excluded information of the ODPP and that the ODPP has refused (on several occasions to date) to consent to its disclosure.
Based on the Tribunal's decisions in Betzis and YG, I reject the applicant's submission to the effect that "prosecuting functions" should be interpreted restrictively, such that not all of the disputed information is excluded information.
It follows that I am satisfied that there is an overriding public interest against disclosure of the disputed information.
Accordingly, it is not necessary for the Tribunal to apply the public interest test to this matter.

Conclusion

The respondent's decision dated 17 April 2023, 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: 08 November 2023

Police Act 1996(NSW)

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (15)