Wojciechowska v Commissioner of Police

Legal Principles

1. The role of the Tribunal in reviewing an administratively reviewable decision is to determine the correct and preferable decision having regard to the applicable law and relevant facts: Administrative Decisions Review Act 1997 (ADR Act), s 63(1). The burden of establishing that a reviewable decision made under the GIPA Act is justified lies on the agency: GIPA Act, s 105(1).
2. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1): "(a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency…"
3. Section 100(1) of the GIPA Act gives a person who is aggrieved by a "reviewable decision" of an agency the right to seek administrative review of that decision by the Tribunal. The term "reviewable decision" is defined in s 80 of the GIPA Act and includes decisions under ss 58(1)(a) and (b).

Decision that information not held

1. Section 53(2) of the GIPA Act provides: "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."
2. The Appeal Panel held in Klaric v Commissioner of Police [2020] NSWCATAP 153 (Klaric) at [33]: "The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. The Tribunal noted that, in reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches…It also recognised that the agency has a burden to justify its decision that it does not hold information, and that this issue is different from whether its search for information was sufficient".
3. While the reasonableness of searches is not, in and of itself, reviewable, it is a relevant consideration as to the correctness of a determination that information is not held. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41], the Appeal Panel clarified the finding in Klaric: "whether the agency has complied with the obligation imposed by s 53 is plainly a relevant factor in determining whether an 'information is not held' decision is the 'correct and preferable decision'".
4. In Wojciechowska, the Appeal Panel also departed from the previous test as to whether reasonable searches had been undertaken. An access applicant is not required to establish that there are reasonable grounds to believe that the requested information exists and is held by an agency, before that agency must undertake searches. Instead, it falls to the agency to assess whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by the agency. The Appeal Panel then summarised the task for the Tribunal in reviewing a decision that information is not held by an agency at [44]: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s. 53(1)-(5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s. 63(3) of the Administrative Decisions Review Act.
5. In determining the reasonableness of searches, relevant considerations were identified in Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 at [30] (cited with approval in Amos v Central Coast Council [2019] NSWCATAD 226 at [14]): "…the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant."
6. That there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15].
7. In Robinson v Commissioner of Police [2014] NSWCATAP 73, the Appeal Panel at [28] observed that, in establishing whether adequate searches had been made, evidence must be shown as to the nature of searches undertaken, the means of the searching used and whether systems of electronic retrieval have been used.

Decision that information out of scope

1. In Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 (Miskelly) at [97]-[98], the Tribunal observed the following in relation to an agency's obligation to undertake reasonable searches for information: "Section 53(2) of the GIPA Act [requires] an agency to undertake 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'. Section 53(3) provides that this obligation 'extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically'. Hence, it is not unusual that when conducting an initial search using … computerised systems to locate information held by the agency relevant to a specific access request, that the search will locate documents which, on inspection, are found do not contain any information relevant to the access request. Such documents are commonly identified as containing 'out of scope' information."
2. The Tribunal went on to confirm at [103]-[106] that it has no jurisdiction to review a decision that information falls outside the scope of an access application, because such a decision is not one of the "reviewable decisions" prescribed by s 80 of the GIPA Act.

Jurisdiction

1. The Applicant requested reasons for the Tribunal's decision that it had jurisdiction to determine the Applicant's GIPA Act review application, which the Tribunal noted would be provided with the reasons for the substantive decision, particularly bearing in mind the objects of the Civil and Administrative Tribunal Act 2013 (CAT Act) at s 3(c), (d) and (e) and the fact that the Applicant had made similar applications in relation to jurisdiction in other proceedings which had been heard by the Tribunal.
2. The hearing was scheduled to take place by telephone on 19 April 2021. Prior to and at the commencement of the hearing, the Applicant sought an adjournment of the hearing for the following reasons: Conducting this hearing is inconsistent with the guiding principle of NCAT. NCAT cannot determine or hear the substantive issues in this matter prior to the determination of its jurisdiction. Further, my GIPA Act matter with NCAT no 2019/00368647 is currently listed before the Registrar of the Local Court of NSW for 22 April 2021 as Wojciechowska v Commissioner of Police, NSW Police Force (LC no: 2021/102332) for the determination of my application for leave and I understand that the Commissioner of Police decided to appear. If the leave is granted by the Local Court of NSW, this matter (with NCAT no: 2020/00333837) will also be taken by me to the Local Court of NSW. There is therefore no point in running the hearing in this matter on Monday. I suggest that it would be best to relist the matter for eg 2-3 weeks to allow the events outside of NCAT to take their course. I also note that NCAT has still not dealt with my Application for Miscellaneous Matters filed in this matter. I reiterate that I find this completely unacceptable and below any civilised standard. If you do not consent to this proposed adjournment, I will send my application in relation to this matter to the Local Court of NSW prior to the hearing scheduled to 19 April 2021.
3. The Applicant's Application for Miscellaneous Matters dated 11 April 2021 was received by the Tribunal Registry on 19 April 2021. It sought the following: The Applicant asks the NCAT: (a) to stay/adjourn the consideration and any determination of the substantive issues until the jurisdictional issue is conclusively determined. Further, the Applicant asks the NCAT: (b) to decline to accept the Applicant's application for review made to NCAT pursuant to s 100 of the GIPA Act as it seeks to invoke federal jurisdiction because it involves a matter between a State and a resident of another State; AND (c) to provide the Applicant with the document stating that the NCAT declines to accept the Applicant's application because it involves a matter between a State and a resident of another State.
4. The Applicant had also filed an Application for Miscellaneous Matters dated 18 December 2020 in identical terms, except that it did not seek a stay or adjournment. As grounds for her applications, the Applicant referred to her residence in Tasmania, section 75 of the Commonwealth of Australia Constitution Act (the Constitution) and stated: …The power exercised by the Tribunal in this matter is judicial… The consideration of the substantive issues without a conclusive determination of the jurisdiction is, in this case, an abuse of process.
5. The Applicant included 15 pages of detailed written submissions and an affidavit dated 10 April 2021 in support of her Applications for Miscellaneous Matters. The submissions addressed the basis upon which the Tribunal was said to be exercising judicial power, in support of her argument that the substantive matter involved the exercise of federal jurisdiction which cannot be validly determined by the Tribunal.
6. The Respondent relied on its written submissions made in Tribunal proceedings 2019/368647 where the Applicant raised these same issues with respect to another GIPA Act review application. The Respondent submitted that the Applicant had a number of GIPA Act Applications before the Tribunal and had raised the issue of jurisdiction in similar (if not identical) terms in proceedings 2019/368647 and 2020/132948, and those Applications for Miscellaneous Matters had been refused.
7. The Applications for Miscellaneous Matters in these proceedings were heard and determined at the telephone hearing on 19 May 2021. The Tribunal accepted on the Applicant's evidence that the Applicant is currently a resident of Tasmania, and so is "a resident of another State" within the meaning of s 75(iv) of the Constitution. The Tribunal also agreed that the Respondent was the Crown in right of the State of New South Wales, as a member of the NSW Police Force (Police Act 1990, s 5(a)) responsible for the management and control of the NSW Police Force subject to the direction of the Minister for Police and Emergency Services (Police Act 1990, s 8(1)), where the NSW Police Force "is not a separate legal personality, but an unincorporated body said to be comprised of members": Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232 at [35] (Spigelman CJ); see also State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467 at [50]; Hutchinson v State of New South Wales [2019] NSWCA 91 at [66].
8. The Tribunal acknowledged that it was not a "court of a State" within the meaning of Ch. III of the Constitution or s 39 of the Judiciary Act 1903 (Cth): Attorney General for New South Wales v Gatsby [2018] NSWCA 254 (Gatsby) at [184], [190] and [192] (Bathurst CJ); [197] (Beazley P); [198], [204]-[205] (McColl JA); [228] (Basten JA); [307] (Leeming JA).
9. Similar issues of jurisdiction were considered by the Tribunal in Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310 at [11] to [19] in relation to a costs application against the Applicant. As discussed therein: [13] An administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) by the Administrative and Equal Opportunity Division of NCAT, of a reviewable decision made by a New South Wales administrator under the GIPA Act, is not an exercise of judicial power. Section 63 of the ADR Act provides that: (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. This does not involve an exercise an exercise of judicial power: see Drake v Minister for Immigration and Ethnic Affairs (1979) 40 FLR409, at 419 per Bowen CJ and Deane J. Rather, the Tribunal sits in the shoes of the relevant administrator and makes the administrative decision afresh. [18] When the Tribunal is exercising its administrative review jurisdiction, it not exercising judicial power or federal jurisdiction. … [19] This is to be contrasted with the Tribunal's exercise of its jurisdiction to determine rights between parties, such as complaints under the Anti Discrimination Act 1977 (NSW) between parties who are residents of different states, or between residents of different states under the Fair Trading Act 1997 (NSW) or the Residential Tenancies Act 2010 (NSW): see for example Burns v Corbett [2018] HCA 15 and Raschke v Firinauskas [2018] SACAT 19. Cases like these are examples of what are now Federal Proceedings within the meaning of Part 3A of the CAT Act: see Gaynor v Attorney General of New South Wales [2020] NSWCA 48. The Tribunal does not have jurisdiction to hear them: they must be heard by a Court of New South Wales capable of exercising federal jurisdiction.
10. In EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55 the Tribunal considered an application in similar terms to those in these proceedings, in the context of a review application relating to a complaint under s 53 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). The Tribunal provided detailed reasons at [27] to [42] why, in conducting a review under the PPIP Act, it was exercising administrative power rather than judicial power. Those reasons are also applicable to these proceedings, with reference to a review under the GIPA Act.
11. In determining an application for administrative review of a decision made by an agency under the GIPA Act, the Tribunal exercises administrative power under s 63 of the ADR Act. It is not judicial power, for reasons including the following, with reference to the questions raised in Luton v Lessels [2002] HCA 13 (Luton) at [188] - [189]: 1. The exercise to be undertaken under the relevant scheme, being Pt 5, Div. 4 of the GIPA Act, does not call for "independence and tenure of a kind traditionally enjoyed by judges". Whilst independent, Tribunal members do not have tenure, and even the President of the Tribunal, who is a Judge, is subject to a term appointment. The Tribunal member conducting the review is essentially doing the same task as the administrator who made the reviewable decision. 2. An exercise of administrative power can involve a limited amount of fact finding and the application of law to those facts: Luton at [21], [66], [76]. Findings of fact and formation of opinions as to the application of law may be elements in the exercise of administrative power: Paphos Providores Pty Ltd v Ladha (2015) 91 NSWLR 400 at [41]: Precision Data Holdings Ltd v Wills (1991) 173 CLR at 189; Attorney General (Cth) v Breckler [1999] HCA 28 at [24]. While the Tribunal's functions under s 63 of the ADR Act may include a consideration and determination of relevant factual material and the applicable law, the Tribunal must give effect to any relevant policy in force (except if it is contrary to law or produces an unjust decision in the circumstances): ADR Act s 64(1). An "important element" of judicial power is "the application of a pre-existing standard rather than by the formulation of policy or the exercise of the administrative discretion": Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 at [268]. 3. The scope of the Tribunal's function is limited to considering the reviewable decision, determining what the "correct and preferable decision" is on the material before it. Rather than finally and conclusively determining existing rights and obligations as between parties, in deciding a review application under Pt 5, Div. 4 of the GIPA Act, the Tribunal may either affirm, vary, or set aside the reviewable decision. It does not have the power to making a binding determination of a breach or contravention of the law in determining the administratively reviewable decision before it. Its decision is made relying on a balancing exercise conducted with reference to well-established criteria: see Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [24]-[25]; Williams v Department Industry and Investment (NSW) [2012] NSWADT 192 at [22]; Webb v Port Stephens Council [2017] NSWCATAD 348, at [13]. 4. Section 80 of the CAT Act provides an avenue of internal appeal against a first instance administrative review decision, which may be made not only on a question of law, which would be characteristic of a judicial decision, but, with leave, the decision may be appealed without any legal error (CAT Act s 80(2)(b)). 5. An administrative review decision under the GIPA Act is not binding and authoritative in the relevant sense because it is not final, with s 65 of the ADR Act providing that the Tribunal may remit an administratively reviewable decision to the administrator who made the decision for reconsideration at any stage of the review proceedings. 6. There is no suggestion by the legislature that the Tribunal is exercising a judicial power in determining an administrative review application under Pt 5, Div. 4 of the GIPA Act. The Second Reading Speech of the Civil and Administrative Tribunal Bill 2012 notes that tribunals "allow ordinary individuals to resolve disputes, or to have a review or executive action in a less formal setting than a courtroom": NSW Legislative Assembly Parliamentary Debates (Hansard), 21 February 2013 at 17866. 7. The Tribunal is not bound by the rules of evidence, and its procedures are informal: CAT Act s 38. Its process in undertaking a review under the relevant provisions of the GIPA Act has not been traditionally undertaken by the courts. 8. Proceedings for an offence under the CAT Act or a contravention of a civil penalty provision under s 77 of the CAT Act may only be commenced by the Minister or a person with the written consent of the Minister (CAT Act s 75). A limited enforcement jurisdiction is conferred on the Tribunal (see CAT Act s 28(2)(d)), which consists of dealing with contempt of the Tribunal, and applications under s 77 for the contravention of a civil penalty provision of the CAT Act (s 33). The Tribunal has a limited power to punish for contempt committed in the face of the Tribunal or in a hearing of the Tribunal (CAT Act s 73(1)) or may refer any contempt of it to the Supreme Court (CAT Act s 73(5)). These limited prosecution provisions under the CAT Act may be contrasted with, for example, the common informer principle established by the Criminal Procedure Act 1986 (NSW), which provides at s 14 that "a prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons".
12. Not all the factors discussed above with reference to the test in Luton carry the same weight. Significant indicators that the Tribunal's powers are not judicial when reviewing applications under the GIPA Act include the fact that the Tribunal is required to give effect to any government policy in force, and to determine the "correct and preferable decision", neither of which are required of a Court.
13. The Tribunal was satisfied that it had jurisdiction to hear and determine the application for review and reiterated that matter to the Applicant at the hearing. The Tribunal therefore refused the Applicant's request for a stay or adjournment on the basis that it had determined the issue of jurisdiction in relation to these proceedings, and dismissed the Applicant's Applications for Miscellaneous Matters.

Other issues

1. The respondent sought orders under ss 64(1)(c) and 64(1)(d) of the CAT Act in relation to certain documents provided to the Tribunal, which were the unredacted version of documents otherwise provided to the Applicant in answer to her access application. The redactions had been made by the Respondent to information which fell outside the scope of the Applicant's request for access. The Applicant objected to the orders being sought but did not articulate a basis for the objection. The Tribunal granted the orders sought until further order.
2. Upon the Tribunal's dismissal of her Applications for Miscellaneous Matters and the Tribunal making the confidentiality orders sought by the Respondent, the Applicant disconnected from the telephone hearing on at least two occasions after stating words to the effect: I'd sooner eat a tapeworm than accept the Tribunal's jurisdiction Are you going to make the orders? Then goodbye.
3. The Tribunal's telephone hearing system did not show how many parties were present in the virtual hearing room at any given time, or identify when the Applicant was or was not present in the virtual hearing room. However the Tribunal was able to tell that the Applicant rejoined the telephone hearing after disconnecting on several occasions because the Applicant would start talking again, interrupting the Respondent's representative or the Tribunal. The Tribunal proceeded to hear and determine the matter on the basis that the Applicant was able to and had ample opportunity to be heard.

Consideration

1. The Respondent relied on the affidavit of Terry Brombey filed 22 February 2021. The Applicant did not object to that evidence and did not answer the Respondent's correspondence prior to the hearing requesting whether she required Senior Sergeant (S/Sgt) Brombey for cross examination, and did not seek to cross examine S/Sgt Brombey at the hearing.
2. S/Sgt Brombey's affidavit described the extent of the Respondent's searches for information in response to the Applicant's Access Application and the results of those searches. He conducted searches for any GPS data corresponding to the callsigns "BL21" and "BL81" on the dates specified in the Access Application by directly querying the CAD database, because the PoliceCAD Command Client application did not have the facility to search for or display GPS data which was more than six months old.
3. No valid GPS data was returned for the callsign "BL21" on the specified date. Specifically, the database columns which store waypoints (x,y coordinates) contained only zeroes. S/Sgt Brombey stated that this could be because the GPS hardware was unable to obtain a fix, or due to a hardware or software fault.
4. S/Sgt Brombey stated that the callsign "BL81" is a designated police station callsign, not a callsign for a police vehicle. Nevertheless, he conducted a search for the callsign and some GPS data was returned, which was mapped using the Microsoft Power BI visualisation tool. The mapping showed the callsign to be stationary with the GPS signal "bouncing around" at times, suggesting the hardware may not have had a continuous fix. The device used to log in to the Mobile Client for callsign BL81 was a Panasonic Toughbook laptop computer, and the officer who had logged in had used the laptop at his personal residence for work-related purposes during the relevant period. Callsign BL81 was not in use in a police vehicle during the relevant period, and the stationary point depicted in the mapping was proximate to the officer's home address.
5. I accept that to the extent that GPS data was returned by the searches conducted by S/Sgt Brombey in relation to BL81, that data does not relate to a police vehicle.
6. I also accept that the searches conducted by S/Sgt Brombey were exhaustive of the information sources likely to contain GPS data responsive to the Access Application, and to the best of his knowledge, GPS data from police vehicles is not stored or archived in any other system in the NSWPF.
7. I am therefore satisfied that the respondent has undertaken such reasonable searches as were necessary to find any government information responsive to Pts 1-3 of the Applicant's Access Application pursuant to s 53(3) of the GIPA Act.
8. In relation to Pt 4 of the Applicant's Access Application, the Respondent provided the Applicant with access to information on 6 July 2020 and 29 July 2020, which comprised seven pages of documents including some redacted information. The redacted information was the subject of the confidentiality orders made by the Tribunal (discussed above at 18). To the extent the Applicant presses for access to the redacted information, the Respondent submitted that: 1. The redacted information is outside the scope of the Access Application, and 2. The Tribunal does not have jurisdiction to review the Respondent's decision in that regard.
9. Section 74 of the GIPA Act expressly provides that an agency can delete information from a copy of a record to which access is to be provided if the information is not relevant to the information applied, including if the information is out of scope.
10. I agree with the comments in Miskelly to the effect that the Tribunal does not have jurisdiction to review the decision that the redacted information was outside the scope of the Applicant's access application.

Conclusion

1. Accordingly, the correct and preferable decision is to affirm the Respondent's reviewable decision pursuant to s 63(3)(a) of the ADR Act.

Orders 1. The respondent's reviewable decision 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: 16 July 2021