Sobh v Commissioner of Police

Applicable legislation

1. An administrator whose decision is the subject of an application for review to this tribunal is required by s 59(1)(b) to l of the ADR Act to lodge with the tribunal within 28 days a copy of every document, or part of a document, that is in the administrative possession or control that the administrator considers to be relevant to the determination of the application to the tribunal.
2. The respondent has applied to this tribunal for an order under s 59(1) of the ADR Act that it not be required to lodge a copy of certain documents. The tribunal may make such an order if, under s 59(2)(b), considers that an application made under s 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
3. Section 64(1)(d) of the CAT Act empowers the tribunal to make an order prohibiting or restricting disclosure of the contents of a document to some or all of the parties to the proceedings if it is satisfied that it is desirable to do so by reason of the confidential nature of the material or for "any other reason". The issue in this motion is thus whether it is appropriate to make the orders sought by reason of the confidential nature of the material or for any other reason.

The evidence

1. The respondent did not call oral evidence but relied on the s 58 documents (exhibit R1) and certain other documentary material, including confidential statements, confidential exhibits CR3 and CR4. The applicant did not adduce any evidence.
2. The respondent tendered a signed statement by Senior Constable Nathan Dechaufepie, of Bankstown Police Area Command, a police officer of over eight years' standing, dated 9 August 2021 (exhibit R2). The statement explains that the confidential material that is the subject of this motion consists of information he prepared for the Commissioner's application and the redacted information on pages 33 - 34 of exhibit R1. It comprises records and documents held by the police containing confidential criminal intelligence that can be provided to the tribunal if its disclosure is prohibited.
3. After outlining the operation of the New South Wales Police Force (NSWPF) Computerised Operational Policing System (COPS), S/C Dechaufepie explained that having viewed the confidential material, he believes that disclosure of any of it would or could alert the applicant to information that law enforcement has gathered about him and consequently jeopardize future investigations and inquiries, identify confidential sources of information to law enforcement relevant to the proceedings and place identified persons at risk of harm.
4. Confidential material is accessible only by law enforcement personnel with clearance to access it. The confidential material has been collated and maintained by NSWPF and other law enforcement agencies to assist in the monitoring and investigation of criminal activity and those persons who participate in it. It is necessary that such intelligence holdings remain confidential and not known to those who are the subject of it.
5. Disclosure of the confidential material would allow a picture to emerge showing what matters are known to the police about the activities of persons of interest known to police and connected to the applicant, and from which inferences could be drawn by the applicant as to what matters are therefore not known to the NSWPF. While it is possible that the applicant might know some of the information, third parties had not provided written consent for the information to be disclosed in these proceedings. In those circumstances S/C Dechaufepie did not consider it appropriate for that information, which is very sensitive, to be disclosed.
6. Further, law enforcement agencies such as NSWPF relied heavily on assistance from persons who provide confidential sources of information. Such confidential information is widely regarded as an important and useful form of intelligence. If the identity of any individuals providing confidential assistance is disclosed, or such individuals were suspected, rightly or wrongly, of being confidential information sources, they might be subjected to acts of retribution. Further, others who might have supplied information to the police might in the future be deterred from doing so.
7. The respondent also tendered a confidential statement signed by S/C Dechaufepie dated 9 August 2021 (confidential exhibit CR3).
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]

Consideration

1. The normal rule in this tribunal is that its hearings are open to the public and its reasons for decision given publicly, sometimes orally, but more often in writing. That rule is recognized in s 49(1) of the CAT Act. As the Appeal Panel has said, however, the principle of open justice must sometimes be balanced against other values. There are other public interests that may militate against identifying witnesses or third persons mentioned in proceedings (CYL v YZA [2017] NSWCATAP 105, [94] - [96]). That is particularly so where the evidence to be provided concerns evidence of a sensitive nature provided by a victim or matters that are being investigated by police.
2. Before making an order under s 59 of the ADR Act or s 64 of the CAT Act, the tribunal must consider that it would be appropriate to make an order prohibiting disclosure of the documents because of "the confidential nature" of those documents or "for any other reason" (Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41, [3]. See also Bungree Aboriginal Association Ltd v New South Wales Registrar of Community Housing [2019] NSWCATAD 61, [26] - [27].
3. The tribunal in Grant v Commissioner of Police [2020] NSWCATAD 158, [18] - [20] recently summarized the principles relevant to making confidentiality orders: Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that "[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise" (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, "the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing" (CYL v YZA [2017] NSWCATAP 105 at [94]). The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (NCAT Act, s 38(2)). Section 64(1)(d) provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." The word "desirable" should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)). In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d): "Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal."
4. The Appeal Panel surveyed those principles in detail in State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69, (examining the equivalent provisions in the Administrative Decisions Tribunal Act 1997), [50] - [53] and [81] - [82]: 50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word 'desirable', the phrase 'for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any … reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion. 51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is 'really necessary to secure the proper administration of justice in proceedings before it'. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act. 52 In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person - most commonly a witness - involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym. 53 In such cases, the courts have applied a criterion of 'necessity', such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally - i.e., in future proceedings as well as in the proceedings currently being heard. …. 81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 82 In view of Ms Johnson's submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition….
5. As Smart J said in Simring v Commissioner of Police [2009] NSWSC 270, [69], there is a strong public interest in criminal offences being reported to the police and the sources of information not drying up: "If the victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the Police…."
6. S/C Dechaufepie's open statement (exhibit R2) explains in general terms the confidential and sensitive nature of the confidential material, which could be accessed only by select law enforcement personnel who hold the required clearance. The purpose of the information is to assist in monitoring and investigating persons who participate in unlawful conduct and is collated by police. For that purpose it needed to remain confidential, and any disclosure of the confidential material would demonstrate what matters are known and unknown to the police about the activities of the applicant or other persons.
7. It could reveal the identity of persons providing confidential intelligence to police, including registered sources and informants. Police rely heavily on assistance from these people and the confidential information provided is an important and useful form of intelligence. Disclosing the identity of these persons could result in retribution against them and also in deterring those who might otherwise have supplied valuable information from doing so. Disclosure could endanger the physical security, safety and protection of an individual who has provided information. The police wished to minimize the risk of reprisals against informants and to protect its sources and those who provide confidential information.
8. The evidence suggests that the circumstances of this case are sufficiently special that the making of the orders sought is "desirable" within the meaning of s 64(1). Any derogation from established principles of natural justice that could arise from the making of orders under s 64(1) of the CAT Act is not a reason to avoid making such an order. That provision implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24].
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]
15. For the purposes of this motion, it is assumed that the facts are as stated in exhibits R1, R2, CR3 and CR4. In my view that evidence makes a cogent case for the grant of confidentiality and I will make the orders as asked.

Orders 1. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement. 2. Pursuant to s 59 of the Administrative Decisions Review Act 1997 (ADR Act), the respondent ("the Commissioner") not be required to lodge copies of the documents or parts of documents ("the Confidential Material") specified in the Confidential Statement in support of the application and provided to the tribunal in accordance with the orders of the tribunal (confidential exhibits CR3 and CR4). 3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4 is prohibited. 4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal. 5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibits CR3 and CR4 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.

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: 10 September 2021