Burns v GaynorAttorney General for New South Wales v BurnsAttorney for New South Wales v BurnsEx parte Tasmanian Breweries Pty Ltd [1970] HCA 8
Judgment (18 paragraphs)
[1]
Background
As noted above, in her application for access to government information, the applicant sought access to information relating to an incident report she made to NSW Police, on 25 September 2018, on the NSW Police Community Portal, concerning damage that was allegedly caused, by another, to the bush land on the property owned by her and her husband in the Blue Mountains region. At the time of her report, the applicant was visiting her property. On the same day, two NSW Police Officers, Constable J Sanderson and Sergeant Mills, met with the applicant at her property.
Prior to the applicant's incident report on the NSW Police Community Portal, the NSW Police had received two earlier incident reports, on 19 August 2018 and 22 September 2018 concerning the applicant's property. The applicant did not make these earlier incident reports.
On 28 September 2018, the applicant lodged a complaint with the NSW Police Law Enforcement Conduct Commission (LECC) concerning the conduct of the police officers who had attended her property on 25 September 2018. On 29 January 2019, the applicant was advised by the LECC that no further action would be taken in regard to her complaint.
In her access application, made on 30 September 2019, the applicant sought access to the following information:
Copies of all information (in any format) held in relation to Paulina Wojciechowska ("The Applicant") regarding her report lodged via Community Portal on 25 September 2018, Portal Reference Number: … ("The Report"), the events referred to in the Report ("The Events") as well as the attendance of the members of the NSW Police Force on her land in … NSW on 25 September 2018 ("The Incident") and any police action arising from The Report, The Events and The Incident including but not limited to:
1. …
The applicant went on to identify the following nine different classes of documents of the respondent for which information relating to the 25 September 2018 were sought. These included:
1. the COPS data base entries;
2. Police note book records;
3. CCTV footage;
4. In-car or vehicle dashboard video footage;
5. CAD incident log for police attending her land;
6. Police VKG radio (in all available formats);
7. Any witness statements;
8. Police Brief of Evidence; and
9. Any complaints made by the applicant.
In his determination, the respondent decided to the grant the applicant full access to the information in four of the nine documents and withhold access, in part, to the information in the remaining five documents.
The withheld information was withheld on the grounds that a disclosure of that information could reasonably be expected to reveal the personal information of a person other than the applicant (GIPA Act, s 14(2) table cl 3(a)) and that this public interest against disclosure was, on balance, an overriding public interest against disclosure.
The applicant was granted access to the video footage, however the form of access was limited to viewing the footages only: GIPA Act, s 72(1)(c). The respondent said that providing the applicant with a copy of the in car video footage would be contrary to the NSWPF Standard Operating Procedures and that the provision of body worn video footage would be a breach of the Surveillance Devices Act 2007 (NSW) (Surveillance Devices Act).
On 20 January 2020, the applicant sought external review of the respondent's determination/decision by the Information Commissioner: GIPA Act, s 89. The Information Commissioner completed her review on 8 April 2020 and recommended that the respondent reconsider his decision by way of an internal review. I understand the respondent refused to reconsider his decision.
[2]
Matters in issue
At the time of hearing the applicant's substantive application the only matters in dispute were the respondent's decision in regard to the following:
1. no further information was held;
2. the withheld information in the following documents:
1. the note book of Constable Sanderson;
2. COPS events E 68613514 (report date 25/09/2018); E 68739840 (report date 22/09/2018) and E 69413079 (report date 19/08/2018);
3. the still photograph; and
4. the body-worn video footage.
1. the withheld Triage report; and
2. the form of access of the remainder of the body-worn video footage.
The respondent contends that:
1. there is an overriding public interest against the disclosure of the withheld information in the documents listed in 103(2) above on the grounds that a disclosure of the information could reasonably be expected to:
1. reveal an individual's personal information: GIPA Act, s 14(2) table cl 3(a); and
2. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act): GIPA Act, s 14(2) table cl 3(b);
1. there is an overriding public interest against the disclosure of the information in the Triage report on the grounds that a disclosure of the information in this report could reasonably be expected to:
1. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given in such a way as to prejudice a deliberative process of government or an agency: GIPA Act s 14(2) table cl 1(e);
2. prejudice the effective exercise of the agency's complaint handling function: GIPA Act, s 14(2) table cl 1(f); and
3. reveal an individual's personal information and contravene an information protection principle under the PPIP Act: GIPA Act, s 14(2) table cl 3(a) and (b); and
1. there is an overriding public interest against disclosure of the remainder of the body-worn video footage in the way requested by the applicant on the grounds that a disclosure of the information in this form could reasonably be expected to constitute a contravention of s 40 of the Surveillance Devices Act: GIPA Act, s 14(2) table cl 6(1) and s 72(2)(d).
[3]
Material before the Tribunal
As I have noted above, on 21 July 2020 and again on 20 October 2020, orders were made for the applicant to file and serve evidence and submissions in regard to her substantive application, but she decided not to do so. However, she did make a number of oral submissions during the course of the hearing.
The respondent relied on the affidavit:
1. an open bundle of documents, which included a copy of the note book of Constable Sanderson and the COPS events E 68613514; E 68739840 and E 69413079 with the withheld information blacked out. The bundle also included a USB containing a copy of the body-worn video footage with the withheld information deleted;
2. sworn on 24 September 2020, by Ian Steptoe, Senior Advisory and Education Officer at Infolink of the NSW Police Force; and
3. sworn on 7 October 2020, by Chief Inspector Marc Holgate Professional Standards Manager of the Professional Standards Command (PSC).
The respondent also provided the Tribunal, in confidence, with a full copy of the relevant page of Constable Sanderson's note book, the Triage report and the COPS events E 68613514; E 68739840 and E 69413079. A separate USB containing a full copy of the body-worn video footage was also provided in confidence.
During the hearing, the applicant made a number of objections to the affidavits sworn by Ian Steptoe and Chief Inspector Holgate. Her objections primarily related to the hearsay form in which each affidavit was sworn and not in direct speech. As the Tribunal is not bound by the rules of evidence I accepted both affidavits into evidence subject to weight: ADT Act, s 38(1).
The respondent's submissions filed on 2 October 2020 included detailed submissions on the applicant's substantive application.
[4]
Object and General principles of the GIPA Act
The objects of the GIPA Act are set out in s 3, which includes authorising and encouraging the proactive public release of government information by agencies, and providing that 'access to government information is restricted only when there is an overriding public interest against disclosure'.
The expression 'government information' is defined in s 4(1) to mean 'information contained in a record held by an agency'. The word 'record' is broadly defined in cl 10 of Sch 4 of the GIPA Act.
Section 5 of the GIPA Act creates a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure'.
[5]
Public interest test
Section 13 of the GIPA Act defines what is meant by the term 'overriding public interest against disclosure' as follows:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
[6]
Public interest considerations in favour of disclosure
The public interest considerations in favour of disclosure are not closed: GIPA Act, s 12 which provides:
12 Public interest considerations in favour of disclosure
(1) There is a general public interest in favour of the disclosure of government information.
(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. …
[7]
Public interest considerations against disclosure
The public interest considerations against disclosure are closed: GIPA Act, s 14.
Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Sch 1 of that Act. This section is on no relevance to this application.
The only other public interest considerations against disclosure are those set out in the table to s 14(2) of the GIPA Act. That table relevantly provides:
1 Responsible and effective government
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 (whether in a particular case or generally):
…
(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,
(f) prejudice the effective exercise by an agency of the agency's functions, …
3 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, …
6 Secrecy provisions
(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
(2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
[8]
Principles to be applied when determining whether there is an overriding public interest against disclosure
Section 15 of the GIPA Act provides:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
[9]
Process for dealing with an access application
Section 53 sets out the searches an agency must undertake in providing access to government information. I have set out that section in detail, under the heading 'Information not held'.
Section 54(1) of the GIPA Act requires an agency to take such steps as are reasonably practicable to consult with a person before providing access to information relating to that person in response to an access request if it appears that:
1. the information is of a kind that requires consultation;
2. the person may reasonably be expected to have concerns about the disclosure of the information; and
3. those concerns may be relevant to a public interest consideration against disclosure.
Information that does require consultation is information that is personal information about a person other than the person seeking access: GIPA Act, s 54(2)(a) and (b). In this application, the respondent has not undertaken any consultation as he had decided to refuse the applicant access to the information that is personal information of a person other than the applicant.
Section 55 makes provision for the consideration of personal factors of an application to be taken into account when dealing with an access request. That section provides as follows:
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. …
[10]
How an access application is to be decided and form of access
Section 58 of the GIPA Act sets out how an access application is to be decided. That section relevantly provides:
58 How applications are decided
(1) An agency decides an access application for government information by -
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) …
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) …
Note -
These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
Section 72 deals with the form in which access is to be granted. That section is set out below under the heading 'form of access - body worn video footage'.
Section 73(1) provides that an agency is not entitled to impose any conditions on the use or disclosure of information when access to the information sought is granted to the access applicant.
Finally, as I have already noted, the onus is on the respondent to prove that its decision is justified: GIPA Act, s 105.
[11]
Information not held
There is not dispute that a decision of an agency that it does not hold any further information responsive to the applicant's access application is an administratively reviewable decision by the Tribunal: ADR Act, ss 7, 9 and 55 and GIPA Act, ss 58(b), 80(e) and 100.
In this case, the applicant asserts that the respondent must hold further documents. For example, the applicant asserts that further video recordings and entries in note books and duty books of police officers other than that of Constable Sanderson must exist, but have not been looked for or identified.
The approach that is to be taken by the Tribunal in regard to a decision that information is not held was recently considered by the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173, (published on 21 August 2020). In that decision, at [44], the Appeal Panel (Principal Member A Britton) summarised the approach (i.e. task) as follows:
(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.
Section 53 of the GIPA Act sets out the obligation of an agency to search for the information to which the access applicant seeks access. That section is in the following terms:
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.
In his decision of 25 November 2019, the respondent did not identify what searches had been undertaken for information held that was responsive to the applicant's access application.
In her review, the Information Commissioner noted:
[As] the [respondent's] searches have not responded to the entirety of the terms of the access application (which requests access to all information relating to her, including the 9 items which the [respondent] did search for), it is probable that further information would have been identified had the [respondent] proceeded to conduct searches on the terms of her access application as the stood. I am therefore not satisfied that the [respondent's] searches have been adequate.
As I have noted, in his decision of 25 November 2019, the respondent did say that no information was held falling within item (6) and a section of item 1 (i.e. warnings and alerts) of the applicant's access application.
As I have noted above, under the heading 'Proceedings before the Tribunal', item (6) of the applicant's access application related to police VKG radio recordings. On 9 June 2020, the Tribunal made an order remitting this specific item for reconsideration by the respondent. The applicant was also ordered to consider amending the scope of this item as it involved many hours of recordings. The applicant subsequently amended her access application by removing this item from her access application advised the respondent that it did not need to undertake any further searches in regard to this item.
On 22 December 2020, during her oral submissions, the applicant said she was withdrawing her amended access application and was pressing her review application in regard to all matters. In my view, while it was open to the applicant to withdraw her amended access application, it was not open to her to press review of the decision of the respondent in so far as it related to item (6), as the respondent had relied on her abandonment in preparing for the hearing and would be significantly prejudiced if she were allowed to press that aspect of her access application during the course of the hearing of her review application. Hence, I did not and have not considered this aspect of the applicant's access application any further.
This leaves the decision of the respondent that it does not otherwise hold any further information responsive to the applicant's access application.
In support of its decision, the respondent relied on the affidavit evidence of Ian Steptoe. In his affidavit, Ian Steptoe said he was authorised by the respondent, under s 9(3) of the GIPA Act, to make reviewable decisions in connection with access applications made under the GIPA Act. He said that operational police records and information is made and retained on an electronic record-keeping database called the Computerised Operational Policing System database (COPS entries). He explained that this is where information about an event or incident is recorded and then updated as the matter progresses and finalised
He said, sometimes police officers will use a database called View IMS to store evidentiary material relating to an event, including audio-visual material, recordings of interviews and PDFs. This database can be accessed through View IMS and COPS.
He said, in addition to these electronic forms of record keeping, sworn police officers also make a hand written record of their activities in their notebook. Senior officers, such as detectives, may also use a duty book to record their day-to-day activities.
Ian Steptoe went on to say that on 16 September 2020, the Blue Mountains Police Area Command was asked to perform additional searches for documents that were responsive to the applicant's access application. He said he also conducted some additional searches. In regard to these additional searches, Ian Steptoe said:
1. on 21 September 2020, he conducted a search of the COPS database for any 'warnings' or 'alerts' using the applicant's name, the registration of her vehicle and her residential address. He said no 'warnings' or 'alerts' were found and a copy of his search results was annexed to his affidavit;
2. the Blue Mountains Police Area Command had provided him with the duty book entries of Sergeant Mills, who had attended the applicant's property on 25 September 2018, the Senior Constable who had created event report dated 21 August 2018 and 22 September 2018 and the officers who had undertaken the case risk assessment in relation to these reports. He had reviewed these duty books and confirmed that they did not contain any information that was responsive to the applicant's access application;
3. the Blue Mountains Area Command also advised (see annexure F to Ian Steptoe's affidavit);
1. 'CCTY holdings' for the incident reports made on 19 August 2018 (E 69413079) and 22 September 2018 (E 68739840) no longer existed because they are only retained for approximately 31 days;
2. no general duties vehicle in that Area Command is fitted with ICV or dash-cam (which are specifically prohibited by policy);
3. there were no recorded holdings in the COPS system relating to witness statements regarding event report E 69413079, E 68739840 and E 68613514;
4. no brief of evidence exists in regard to event report E 69413079 and E 68739840 as an investigation was not required or warranted. In regard to event report E 68613514 'no investigation was possible as no timeline or any witnesses to the alleged damage could be established';
5. in regard to the complaint file concerning the complaint made by the applicant, that file contained:
1. a still photo taken during the body-worn video of the boundary between the applicant's property and the neighbouring property; and
2. a copy of CAD 174721-25092020; and
1. an attached screen shot of the COPS system only had three entries relating to the applicant and each entry was about the property she and her husband own in the Blue Mountains;
1. In his affidavit, Ian Steptoe said that the applicant had already been provided with a copy of CAD 174721-25092020. He also said the complaint file contained a copy of the Triage report.
In my view, there is no basis not to accept the affidavit evidence of Ian Steptoe. He has experience in responding to and determining access applications that are made to the respondent. He is also familiar with the record keeping systems of the respondent and while his affidavit may contain some hearsay statements in regard to what he was told by the Blue Mountains Police Area Command, attached to his affidavit are copies of the correspondence he received from that Police Area of Command that support what he has stated.
While some additional information responsive to the applicant's access application was located in the further searches made by Ian Steptoe and the Blue Mountains Police Area Command, I am satisfied that the respondent has undertaken reasonable searches as may be necessary to find the information held by the respondent that is responsive to the applicant's access application as at the date it received that application.
Hence, I am also satisfied that the respondent has established that he does not hold any further information that is responsive to the applicant's access request. Accordingly, I find that the decision of the respondent that he does not hold any further information is the correct and preferred decision.
[12]
Personal information
The term 'personal information' is broadly defined in cl 4 of Sch 4 of the GIPA Act as follows:
4 Personal information
(1) In this Act, personal information means 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.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, …
The term 'reveal' means - 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)': GIPA Act, Sch 4 cl 1.
In regard to cl 3(b), s 20 of the Privacy and Protection Information Protection Act 1998 (NSW) (PPIP Act) provides that the information protection principles prescribed in ss 8 to 19 of that Act apply to government agencies and s 21(1) of that Act provides that a public sector agency must not do anything, or engage in a practice, that contravenes an information protection principle.
There is no dispute that the information protection principles apply to the respondent.
Section 18 of the PPIP Act sets out the circumstances in which there can be a disclosure of personal information. In summary the circumstances are:
1. where the disclosure is directly related to the purpose for which the information was collected;
2. the individual is reasonably likely to have been aware, or is made aware in accordance with s 10 of the PPIP Act, that information of this kind is usually disclosed; or
3. the agency believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health.
With the exception of the withheld information on page 2 of COPS event E 69413079, I am satisfied that the withheld information in the reminder of that document and the withheld information in the note book of Constable Sanderson; COPS events E 68613514, E 68739840 and E 69413079, the still photograph and the body-worn video footage is personal information of a person other than the applicant and her husband. I am also satisfied that a disclosure of the withheld information could reasonably be expected to reveal the personal information about the person to which the information relates and contravene the information protection principle in s 18 of the PPIP Act.
However, the question is whether, this public interest consideration against disclosure of this withheld information, on balance, outweighs, the public interest consideration in favour of disclosure.
I note that the applicant does not seek access to information that is the private telephone numbers of a person other than herself and her husband. However she does press access to a specified address.
It is not for the Tribunal to disclose whether the withheld information does or does not contain the specified information sought: GIPA Act, s107.
In my opinion considerable weight should be given to the withheld personal information of a person other than the applicant and her husband. This is especially so as the respondent is reliant on members of the public to provide personal information, including being recorded in a photo and on video. As noted in the affidavit of Marc Holgate, information of this kind is generally given in circumstances where there is an expectation that it will not be disclosed without the person's knowledge or consent.
The applicant is critical of the respondent in not seeking consent of the persons to whom the personal information relates, as provided in s 54 of the GIPA Act. That section, as I have noted, only applies where the agency proposes to provide access of such information to the access applicant. In this case, the respondent did not propose to provide the applicant with the information - hence there was no requirement to consult.
In regard to the public interest considerations in favour of disclosure, I note that there is a general public interest in favour of the disclosure of government information. However, other than what might be a private interest of the applicant knowing what is contained in the withheld information, in my opinion, there is no public interest in the disclosure of the withheld information that is personal information about the persons to whom that information relates.
In regard to the withheld information at the bottom of page 2 of COPS event E 69413079, I am not satisfied that this is personal information about a person other than the applicant and her husband. My reasons for this finding is set out in the following paragraphs which are not to be disclosed to the applicant as it would disclose information for which there is a claim of an overriding public interest against disclosure: GIPA Act, s 107.
[CONFIDENTIAL NOT TO BE PUBLISHED]
[CONFIDENTIAL NOT TO BE PUBLISHED]
[CONFIDENTIAL NOT TO BE PUBLISHED]
For the reasons set out above, I am not satisfied that the respondent has established that there the public interest consideration against disclosure of the withheld personal information at the bottom of page 2 of COPS event E 69413079, on balance, outweighs the public interest consideration in favour of disclosure.
However, I am satisfied that; in regard to the remainder of the withheld information in COPS event E 69413079 and the withheld personal information in the remaining documents, the respondent has established the public interest consideration against disclosure outweighs the public interest consideration in favour of disclosure.
Hence, I find that:
1. the decision of the respondent in regard to the withheld personal information in note book of Constable Sanderson; COPS events E 68613514, E 68739840 and E 69413079 (other than the deletion at the bottom of page 2), the still photograph and the body-worn video footage is the correct and preferable decision.
2. The decision of the respondent in regard to the withheld personal information at the bottom of page 2 of COPS event E 69413079 is not the correct and preferable decision.
[13]
Triage report
In his submissions filed in these proceedings, the respondent claims that a disclosure of the information in the Triage report could reasonably be expected to:
1. reveal a deliberation, or an opinion, advice or recommendation given, in such a way to prejudice a deliberative process of the respondent: GIPA Act, s 14(2) Table cl 1(e); and
2. prejudice the effective exercise by the respondent of its functions: GIPA Act, s 14(2) Table cl 1(f).
The Triage report relates to the complaint the applicant made against Constable Sanderson and Sergeant Mills. It is not disputed that the complaint was made under Part 8A of the Police Act 1990 (NSW).
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), the Appeal Panel set out the approach to be taken in regard to the public interest considerations in cl 1 of the table to s 14(2) of the GIPA Act. As noted above, cl 1 relates to 'Responsible and effective government', which the Tribunal has held requires a relatively abstract analysis: Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), at [58].
Common to each of the public interest considerations against disclosure in cl 1(e) and (f) is 'prejudice'. The GIPA Act does not define what this word means, but it has been accepted that it means - 'to cause detriment or disadvantage' or 'impede or derogate from': McLennan v University of New England [2013] NSWADT 113.
In his affidavit, Marc Holgate explained that when a complaint against a police officer is made, an individual complaint file is created in the respondent's complaints information system, IAPro, and an initial assessment is made as to whether the complaint will be investigated. He said that this assessment is recorded in a triage form, which is added to the complaint file.
He said that the triage form 'is a prescribed and mandatory standard form document, which is confidential and sensitive' and informs the triage officer of the required assessments needed to reach a sound triage recommendation, which is either accepted or rejected by the relevant delegate of the respondent. He said the triage form records the decision-making deliberative process at the triage stage and a disclosure of this form would likely prejudice the performance of this important integrity function under Part 8A of the Police Act.
He said that if the deliberations and decisions of that process were disclosed, the ability of the triage officer to engage in frank and honest deliberations would be hindered. He went on to say, that in his view and from his experience, triage officers would be less likely to record their frank opinions in relation to a complaint. He also said that a disclosure of the triage form would enable potential complainants to specifically tailor nefarious complaint issues so as to manipulate an outcome in their favour or to support their agenda, which would undermine the respondent's commitment to the integrity of conduct matters. It would also divert scarce resources away from the respondent's core functions under the Police Act.
I note that in a recent decision, Page v Commissioner of Police [2020] NSWCATAD 163, the respondent had made a decision to provide an access applicant with a copy of two triage reports (with redactions) relating to a complaint of misconduct that the applicant had made against a police officer under Part 8A. On external review by the Tribunal, the applicant was provided with the entirety of the information in each report; see also Applicants v Commissioner of Police [2015] NSWCATAD 22.
I accept that the information in the Triage report the subject of this application, is confidential and sensitive in that it contains information specific to the applicant's complaint.
I also accept that a disclosure of the information in this Triage report could reasonably be expected to reveal a deliberation, or an opinion, advice or recommendation in regard to the deliberative process of the respondent in so far as it relates to the pre-assessment of the applicant's complaint. However, as that deliberative process has been completed and the applicant has been informed, in writing, of the decision and the reasons why the decision was made, I am not satisfied that a disclosure of the information in the Triage report could reasonably be expected reveal the deliberation etc. in such a way as to prejudice the deliberative process of the applicant's complaint made against Constable Sanderson and Sergeant Mills under Part 8A of the Police Act.
Nor am I satisfied that a disclosure of the information in the Triage report could reasonably be expected to prejudice the effective exercise by the respondent of its complaint handling function under Part 8A of the Police Act.
I accept that Marc Holgate, a Chief Inspector, is an experienced police officer. However, I am not persuaded by his assertions as to the reasonable expectations arising from a disclosure of the information in the Triage report. That report, as noted by Marc Holgate, is made on a pro-forma triage form during the pre-investigation assessment of a complaint of misconduct made against a police officer or an administrative employee of the respondent. That is, it is an internally created form to assist an assessment officer in making an assessment as to whether a complaint is to be investigated or not. I appreciate the form is intended to assist in having a uniform approach to the assessment of complaints that are received under Part 8A.
However, with the exception of the information (in part as outlined below) on page 2 of the Triage report, I am not persuaded that a disclosure of the report would hinder a triage officer from being frank and honest in his or her deliberations. The triage form, as explained by Marc Holgate, is used and completed by the triage assessment officer in the course of his/her work, as a police officer, and in the exercise of the functions vested in the respondent under the Police Act. In my opinion, this means that a triage officer is required to complete the form frankly, truthfully and objectively on the information before him or her, including that which was provided by a complainant. To do otherwise could of itself amount to misconduct by the triage officer.
In regard to the information on page 2 of the Triage report, I am satisfied that a disclosure of the information (in part) on this page could reasonably be expected to prejudice the effective exercise by the respondent of its functions under Part 8A of the Police Act in that it would enable a complainant to tailor his or her complaint to follow a particular pathway. I agree with Marc Holgate that this would have an adverse impact on the respondent in dealing with complaints. However, they are matters a triage officer is required to take into account when conducting a triage assessment of a complaint.
The information to which I refer is [CONFIDENTIAL NOT TO BE PUBLISHED].
Hence, I am satisfied that the respondent has established that a disclosure of the information (in part) on page 2 of the Triage report could reasonably be expected to prejudice the effective exercise by the respondent of his functions under Part 8A of the Police Act.
However, I am not so satisfied in regard to the remainder of the information in the Triage report. That is, I am not satisfied that the respondent has established that a disclosure of the information in the remainder of the Triage report gives rise to the public interest considerations against disclosure in cl 1(e) and (f) of s 14(2) of the GIPA Act.
In light of my findings, it is only necessary for me to apply the public interest test in regard to the information for which I am satisfied there is a public interest against disclosure (i.e. the information on page 2). However, in the event I am incorrect in regard to the remainder of the information I have also considered the public interest test in regard to the remainder of the information.
Page 2 information (in part) - in my view the public interest consideration against the disclosure of the abovementioned information on page 2 of the Triage report should be given significant weight. It is information of internal importance to the respondent underlying the integrity of its internal processes of complaints made pursuant to Part 8A of the Police Act.
The abovementioned information does not contain any personal information about the applicant. Hence, in my opinion, the public interest considerations in favour of the disclosure of this information includes the following:
1. the general public interest in favour of disclosure of government information; and
2. a disclosure of the information could reasonably be expected to inform the public about the operations of the respondent in regard to the pre-investigation assessments of complaints.
Given the nature of the information, I would give little weight to the public interests in favour of disclosure. Hence I am satisfied that, in regard to the abovementioned information on page 2 of the Triage report, the public interest considerations against disclosure, on balance, outweighs the public interest considerations in favour of disclosure.
in that a disclosure of the information would it goes to the integrity of the triage assessment process
Remaining information - in the event I am wrong in my finding that the respondent has failed to establish that the public interest considerations relied on by the respondent has not been established, I would find that the following public interest considerations in favour of the disclosure of the information in the Triage report would apply:
1. the general public interest in favour of disclosure;
2. the disclosure of the remaining information would enhance transparency of the pre-investigation assessment process of a complaint made under Part 8A Police Act: see Applicants v Commissioner of Police, at [116]; and
3. the information is the personal information of the applicant
I would give considerable weight to the public interests considerations in favour of disclosure, especially as much of the information has already been disclosed to the applicant in the letter advising her of the outcome of her complaint. While considerable weight would be given to the public interest decision of the respondent in regard to the Triage report is not the correct and preferable decision opinion, on balance, outweigh those in favour of disclosure: as noted in Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [94], ultimately this is a question of fact.
Accordingly, I find that the decision of the respondent:
1. in regard to the information on page 2 of the Triage report, as described at [186] of these reasons for decision, is the correct and preferable decision; and
2. in regard to the remaining information in the Triage report, is not the correct and preferable decision.
[14]
Form of access - body-worn video footage
The applicant submitted that a disclosure of the body-worn video will reveal the truth as to how she was treated by police on 25 September 2018. She said she had made an honest complaint to police that day and presented as a victim, but was considered a person of interest and has never received a response in regard to her complaint. As I have noted, the subject matter of the applicant's application to the Tribunal is 'government information', namely information in a record held by the respondent and for which the applicant has been refused access because the public interest consideration against disclosure of that information, on balance, outweighs the public interest considerations in favour of disclosure. Hence, the applicant's application is not a vehicle by which the applicant can agitate her dissatisfaction about how she was treated that day by police.
As I am satisfied that the respondent's decision to withhold the information that is personal information of a person other than the applicant or her husband is the correct and preferable decision, it is only the remaining information recorded on the bod-worn video footage which remains in issue. This remaining information is the applicant's interchange with Inspector Mills and Constable Sanderson. The respondent contends that there is an overriding public interest against the disclosure of this information in the form requested by the applicant: GIPA Act, s 72(2)(d).
The introductory wording of s 72(2) provides that the agency must provide access in the way requested by the applicant unless one of the circumstances prescribed in that subsection applies, which includes (d).
Section 72(1) of the GIPA Act prescribes the forms in which an agency can give an access application to the information sought. This includes:
(c) providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned).
The public interest consideration against disclosure relied on by the respondent is the secrecy provision in s 40 of the Surveillance Devices Act, which relevantly provides as follows:
40 Prohibition on use, communication or publication of protected information
(1) A person is guilty of an offence if -
(a) the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and
(b) the person knows that, or is reckless as to whether, the information is protected information, and
(c) the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section.
Maximum penalty - Imprisonment for 2 years.
The expression 'protected information' is broadly defined in s 39 and ranges from information obtained from the use of a surveillance device under a warrant to 'any information obtained from the use, in accordance with s 50A, of body-worn video of police'.
Section 50A relevantly provides
50A Police use of body-worn video
(1) The use of body-worn video by a police officer is in accordance with this section if -
(a) the police officer is acting in the execution of his or her duty, and
(b) the use of body-worn video is overt, and
(c) if the police officer is recording a private conversation, the police officer is in uniform or has provided evidence that he or she is a police officer to each party to the private conversation.
(2) Without limiting the ways in which the use of body-worn video may be overt for the purposes of subsection (1)(b), the use of body-worn video is overt once the police officer informs the person who is to be recorded of the use of body-worn video by the police officer.
A number of exceptions to the prohibition in s 40(1) are contained in s 40(2) to (7) of the Surveillance Devices Act. However, as noted above, cl 6(1) of the table to s 14(2) of the GIPA Act makes provision for a public interest consideration against disclosure where a disclosure could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule that prohibits the disclosure of information, regardless of any qualifications or exceptions to that prohibition.
Clause 1 of Sch 1 of the GIPA Act makes provision for a conclusively presumed overriding public interest against disclosure of information that is prohibited under the specified legislative secrecy provisions in that clause: GIPA Act s 14(1). Section 40 of the Surveillance Devices Act is not included in the list of specified legislative secrecy provisions in cl 1 of Sch 1 and s 11 of the GIPA Act makes it clear that the public interest test in s 13 must be applied to any information the disclosure of which falls with cl 6(1) of the table to s 14(2).
I accept s 40 of the Surveillance Devices Act is a prohibition falling within the public interest consideration against disclosure in cl 6(1) of s 14(2) of the GIPA Act and that providing the applicant with a copy of the body-worn video could reasonably be expected to contravene that section.
The respondent contends that considerable weight should be given to this public interest consideration against disclosure and in this regard relies of the remarks made by the Supreme Court (per Hall J), in Votienko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 and the Tribunal, in Cheung v Commissioner of Police [2019] NSWCATAD 249.
In my view, the decision in Votienko is of little, if any, relevance to the matters in issue in this application. In that case, the matter in issue concerned an application for access to surveillance recordings, obtained by police pursuant to a surveillance warrant, that had been produced, to the District Court, by the respondent in the proceedings initiated against it by the plaintiff, Votienko. The proceedings in the District Court related to an insurance dispute and the respondent objected to the plaintiff being granted access to the information on a number of grounds including the prohibition under s 40 of the Surveillance Devices Act and the requirements of s 43 of that Act. Section 43 provides that a person is not entitled to search such information in the custody of the court, unless the court otherwise orders 'in the interest of justice', which is not a relevant issue in this application.
In Cheung, the applicant had sought access, under the GIPA Act, to the body-worn camera recording of the police officer who had pulled her over when conducting a roadside random breath testing. The respondent determined to provide Ms Cheung with view access only, on the grounds that there was an overriding public interest against disclosure of the recording in the form she had requested. The public interest consideration against disclosure relied on by the respondent was s 40 of the Surveillance Devices Act. At [43] the Tribunal said:
43. While use of body-worn video is overt unlike the use of other surveillance devices, it is clear that Parliament has included information obtained from the use of body-worn video by a police officer within the provisions concerning "protected information". It is also apparent from the extract set out above from the Parliamentary Debates that Parliament intended that the use, communication and publication of information obtained from the use of body-worn video by a police officer is to be generally prohibited unless necessary for a specified purpose. The fact that significant penalties apply to an authorised disclosure of such information highlights the seriousness of the Parliament's intention to significantly restrict disclosure. The overwhelming policy considerations behind such a prohibition relate to the integrity of investigations and other law enforcement activities and the privacy of the individuals concerned. These are very important considerations and the limited nature of the exceptions to the prohibition demonstrates an intention to strictly control information obtained through a surveillance device, including body-worn video.
I agree that considerable weight should be given to this public interest consideration against disclosure.
The respondent acknowledges that, in so far as the body-worn video footage depicts the applicant's interaction with police, it is her personal information, which is a factor favouring disclosure. However, the respondent contends that this should be given little weight, as this public interest consideration and any other public interest consideration in favour of disclosure is satisfied by the applicant being provided with viewing-only access. That is, the respondent contends that the viewing-only access changes the balance of considerations for and against disclosure.
In my view, the proper approach to the issue is to first decide, on the material before the Tribunal (including the form of access request) and the relevant legislative provisions whether, on balance, the public interest consideration against disclosure outweighs the public interest considerations in favour of disclosure. Again, as noted in Hurst, at [94], ultimately this 'is a question of fact and degree, requiring the weighing of competing matter, and is a task that is not amenable to mathematical calculation'.
If satisfied that there is an overriding public interest against the disclosure of the information in the form sought, consideration can then be given to whether access can be provided in another form, which alters the balance between the two competing public interests.
In my opinion, in this case there is a fine balance between the public interest consideration against disclosure and that in favour of disclosure
I note the Surveillance Devices Act was enacted as part of a national legislative scheme and while the explanatory note to the Surveillance Devices Bill 2007 said that an object of the Bill included restricting the use, publication and communication of information obtained through the use of surveillance devices, the objects of the Act are in the following terms:
2A Objects of Act
The objects of this Act are -
(a) to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and
(b) to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and
(c) to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.
In my view, it is these objects and the provisions of the Surveillance Devices Act that should be given precedence in determining the policy underlying the Act and the prohibition in s 40(1).
As I have explained, in this particular case, the information in issue is the applicant's interchange with Sergeant Mills and Constable Sanderson that occurred on her property, as a result of her complaint on the Community Portal that morning. The compliant made by the applicant also concerned her property where the interchange occurred. That is, the information is primarily her personal information and disclosure of the information would not breach the privacy of any other person. Nor is there any evidence to indicate that the footage is required for any further law enforcement purposes, which is what the exceptions to s 40(1) appear to be directed to: see Surveillance Devices Act, s 40(4A) and Surveillance Devices Regulation 2014 (NSW), cl 4.
I note s 40(5) of the Surveillance Devices Act makes provision for protected information to be communicated or published by a police officer 'to any person' with the consent of the respondent, if satisfied of the requirements set out in s 40(6) and (7). These requirements include being satisfied that it is necessary or desirable in the public interest for the information to be communicated or published and that the public interest outweighs any intrusion on the privacy of the person to whom the information relates or any other person who may be affected by its communication. In this case, as I have noted, the communication (information) is a recording of what the applicant said and did during her conversation with police on the day in question.
Hence, in my view, this public interest consideration in favour of disclosure should also be given considerable weight.
There is also the general public interest in the disclosure of government information: GIPA Act, s 12(1).
I am also of the view that a disclosure of the information could reasonably be expected to inform the public about the operations of the respondent in regard to the practices of police officers in the use of body-worn videos and their interaction with a member of the public who sought the assistance of police.
Finally, I have had regard to the requirements of ss 15(e) and 73 of the GIPA Act that disclosure of the information cannot be made subject to any conditions on the use or further disclosure of the information. The respondent has not raised any issue in this regard.
In conclusion, I am not satisfied that, in this particular case, the respondent has established that the public interest considerations against the disclosure of the remaining information recorded in the body-worn video footage, on balance, outweighs the public interest in favour of disclosure. Hence, I am not satisfied that the respondent has established that there is an overriding public interest against the disclosure of the remaining information recorded in the body-worn video footage in the form requested by the applicant.
Accordingly, I find that the decision of the respondent to provide the applicant with viewing-only access to the information recorded in the on-body video footage (excluding the personal information of a person other than the applicant) is not the correct and preferred decision.
[15]
Summary of findings in regard to the applicant's substantive application
For the reasons set out above, I have found:
1. the decision of the respondent that he does not hold any further information responsive to the applicant's access application is the correct and preferable decision;
2. the decision of the respondent in regard to the withheld personal information of a person other than the applicant and her husband in note book of Constable Sanderson; COPS events E 68613514, E 68739840 and E 69413079 (other than the deletion at the bottom of page 2), the still photograph and the body-worn video footage is the correct and preferable decision;
3. the decision of the respondent in regard to the personal withheld information at the bottom of page 2 of COPS event E69413079 is not the correct and preferable decision;
4. the decision of the respondent:
1. in regard to the information on page 2 of the Triage report, as described at [186] of these reasons for decision, is the correct and preferable decision; and
2. in regard to the remaining information in the Triage report, is not the correct and preferable decision; and
1. the decision of the respondent to provide the applicant with viewing-only access to the information (excluding the personal information of a person other than the applicant) recorded in the on-body video footage is not the correct and preferred decision.
On the basis of my findings it is appropriate to make an order affirming the decision of the respondent in regard to the following information:
1. that it does not hold any further information that is responsive to the applicant's access application the subject of these proceedings; and
2. to refuse to provide access to the following withheld personal information of a person other than the applicant and her husband in the following documents:
1. the note book of Constable Sanderson;
2. COPS events E 68613514; E 68739840 and E 69413079 (other than the information at the end of page 2);
3. the still photograph; and
4. the body-worn video footage.
1. to refuse to provide access to the information on page 2 of the Triage report, as described at [186] of these reasons for decision.
2. in regard to the remaining information in the Triage report, is not the correct and preferable decision.
It is also appropriate to make an order setting aside the decision of the respondent in regard to the following information:
1. the withheld information at the end of page 2 of COPS event E 69413079;
2. the withheld information in the Triage report, other than the information on page 2 of the Triage report, as described at [186] of these reasons for decision; and
3. to provide viewing-only access to the information in the body-worn video footage (other than the withheld personal information of a person other than the applicant and her husband); and
in substitution of these decisions, a decision that the applicant be provided access to this information.
[16]
Orders
For the reasons set out above the following orders are made:
1. The applicant's Application for miscellaneous matters is dismissed.
2. The decision of the respondent to refuse the applicant access to the information in the following documents is set aside:
1. the information at the end of page 2 of COPS event E 69413079; and
2. the Triage report, other than the information on page 2 of the Triage report, as described at [186] of these reasons for decision.
1. The decision of the respondent to provide the applicant with viewing- only access to the information recorded in the body-worn video footage (other than the withheld personal information of a person other than the applicant and her husband) is set aside.
2. In substitution of the decisions of the respondent referred to in order (2) and order (3) above a decision is made to provide the applicant with access to:
1. the information referred to in order (2); and
2. the information in the body-worn video referred to in order (3) in the form requested by the applicant.
1. The decision of the respondent is otherwise affirmed.
[17]
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
[18]
Amendments
19 October 2021 - Pursuant to s 63 of the CAT Act (slip rule) the words 'is set aside' added to the end of Order 3 and the words ' and in the form requested by the applicant' added to the end of Order 4.
20 October 2021 - Further amendment to Order (4) to clarify information to be released and correction to numbering of Orders.
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: 20 October 2021
Parties
Applicant/Plaintiff:
Wojciechowska
Respondent/Defendant:
Commissioner of Police
Legislation Cited (14)
Australia Constitution Act 1900(Cth)
Surveillance Devices Regulation 2014(NSW)
GIPA Act, the Civil and Administrative Tribunal Act 2013(NSW)
Civil and Administrative Decisions Review Act 2013(NSW)
Privacy and Protection Information Protection Act 1998(NSW)
v Wagga Wagga City Council [2011] NSWADT 307
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 at [153]; (2009) 237 CLR 501
Luxton v Lessels [2002] HCA 13
McLennan v University of New England [2013] NSWADT 113
Morris v Riverwild Management Pty Ltd [2011] VSCA 283
Page v Commissioner of Police [2020] NSWCATAD 163
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361
Votienko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 234
Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179
Wojciechowska v Commissioner of Police [2021] NSWCATAD 210
Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310
Category: Principal judgment
Parties: Paulina Wojciechowska (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation: Solicitors:
Applicant self-represented
NSW Crown Solicitor for the Respondent
File Number(s): 2020/132948
Publication restriction: Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) order as follows:
(1) no record of the hearing of the appeal conducted on 22 December 2020 in the absence of the applicant and the public is to be released to the applicant or to the public without further order.
(2) those parts of these reasons for decision that are marked 'Confidential Not to be Published' are to be kept confidential and are not to be released to the applicant or the public without further order.
PART A: Jurisdiction
There is no dispute that the applicant is a resident of the State of Tasmania and that the Commissioner is the State of New South Wales. Nor is it disputed that the Tribunal is not a 'court of a State' within the meaning of Chapter III of the Commonwealth of Australia Constitution Act 1900 (the Constitution) or s 39 of the Judiciary Act 1903 (Cth) (Judiciary Act): 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] (Lemming JA).
What is in dispute is whether the determination of the applicant's application before the Tribunal involves an exercise of judicial power. It is the applicant's contention that it does.
In regard to what constitutes judicial power, the applicant relies on the test set out by Callinan J, at [188] and [189] in Luxton v Lessels [2002] HCA 13. In this regard his Honour said (citation references omitted):
188. It is common ground that it is not always possible to define a power or function as being exclusively administrative or judicial. Powers may overlap, and some functions or powers may be conferred on either a court or an administrative body. It has also been said (in the context of a consideration of the power of a Registrar of Trademarks) that some functions "may, chameleon like, take their colour from their legislative surroundings or their recipient". …
189. I would prefer to state a test by reference to several questions, not all of which will be of equal importance in every case. First, is the exercise to be undertaken under the relevant scheme, one which calls for independence and tenure of a kind traditionally enjoyed by judges? Secondly, does the scheme require the making of findings on disputed facts, or as to the law to be applied? Thirdly, is the relevant decision made by reference to a formula or a fairly standard set of criteria? Fourthly, is the decision appealable? Fifthly, if it is, what is the nature of the appeal? Sixthly, is the decision likely, as a legal or as a practical matter to serve as a precedent for decisions in future similar instances? Seventhly, has the legislature expressed a view about the nature of the process involved? Eighthly, is the process to be followed of a kind that has traditionally been undertaken by courts? Ninthly, does the decision relate to pre-existing rights and obligations, or does it create new ones? Tenthly, is the decision enforceable by the maker of it or by the institution of which he or she is a member? And, last, is there any other feature of the process which is historically of an administrative or a non-judicial kind?
The applicant contends that a determination by the Tribunal of her application meets the majority of these criteria. She also relied on the decision of the High Court in Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney for New South Wales v Burns; New South Wales v Burns [2018] HCA 15 (Burns v Corbett).
The applicant noted the meaning given to the expression 'federal jurisdiction' by the High Court in Burns v Corbett, at [21] and [43], and submitted that any attempt to exercise the 'adjudicative authority' in respect of the matters listed in ss 75 and 76 of the Constitution by an 'an agency of the government of a State other than a court' is invalid. Hence, as NCAT is not a court of a State, the applicant submitted NCAT cannot 'exercise federal adjudicative authority' in respect of a matter between 'between States, or between residents of different States, or between a State and a resident of another State': Constitution, s 75(iv).
The respondent acknowledged that there are some indicia which suggest that the Tribunal may be called upon to exercise judicial power in determining an application made under Part 5 Division 4 of the GIPA Act. In this regard it was acknowledged that the Tribunal would be determining a contested application between parties involving in part, the formation of a view, based on existing facts and law, concerning the legal duties of a public sector agency in determining an access application.
Nevertheless, the respondent contended that the Tribunal would be satisfied that its determination of the applicant's application does not involve an exercise of judicial power, but is an exercise of administrative power because:
1. it must give effect to any relevant Government policy in force at the time the decision was made, because it is subject to the same Government policy that applied to the administrator whose decision it is reviewing: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 64(1);
2. findings of fact and formation of opinions as to the application of law may be elements in the exercise of administrative power;
3. the Tribunal, an executive body is called on to consider the correct and preferable decision having regard to the material before it and the applicable law and make orders affirming, varying or setting aside the administrative decision: ADR Act, s 63. And there is nothing in Part 5 of Division 4 of the GIPA Act or the ADR Act to suggest that the Tribunal is either empowered or expected to make a binding determination of a breach or contravention of the law in determining the administratively reviewable decision before it;
4. the Tribunal is not bound by the rules of evidence and its procedures are informal: Civil and Administrative Decisions Review Act 2013 (NSW) (NCAT Act), s 38; and
5. the Tribunal's decision in administrative review is not binding and authoritative in the relevant sense because it is not final: ADR Act, s 65.
The respondent also noted that Part 3A of the NCAT Act gives a person who has standing to make an original application or an external appeal that involves 'federal jurisdiction' the right, with leave of the NSW District Court or NSW Local Court, to make that application or external appeal to that Court instead of the Tribunal: NCAT Act, s 34B(1).
In its supplementary submissions, received on 29 October 2020, the respondent addressed each of the questions raised in the test of Callinan J in Luton v Lessels. It is unnecessary to repeat these, other than to note that the respondent reiterated its contention that the Tribunal would be satisfied that its determination does not involve an exercise of judicial power, and therefore it has jurisdiction to determine the applicant's application.
The Constitution
It is convenient to briefly set out the relevant provisions of the Constitution.
First, the relevant provisions are contained in Chapter III of the Constitution which is headed 'the Judicature'.
Section 71 in this Chapter makes provision for the 'judicial power' of courts as follows:
71 Judicial power and Courts
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
Section 73 in Chapter III provides that, subject to any exception or regulation as prescribed by the Parliament (Cth) the High Court shall have jurisdiction to hear and determine appeals from all judgments decrees, orders and sentences of any Justice or Justices exercising the original jurisdiction of the High Court and of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State.
Section 75 in Chapter III relevantly provides:
75 Original jurisdiction of High Court
In all matters:
…
(iv) between States, or between residents of different States, or between a State and a resident of another State;
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
Section 77 in Chapter III provides:
77 Power to define jurisdiction
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i) defining the jurisdiction of any federal court other than the High Court;
(ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii) investing any court of a State with federal jurisdiction.
Pursuant to s 77 of the Constitution, Part VI of the Commonwealth Judiciary Act contains provisions in respect of the matters with which the High Court has exclusive jurisdiction (i.e. s 38) and the investing of federal jurisdiction in State Courts in regard to other matters (i.e. s 39). of, a law made by the Parliament of the Commonwealth under s 77 of the Constitution, sets out the matters in which the jurisdiction of the High Court is exclusive of the jurisdiction of the several Courts of the States.
In this regard, s 39(1) and (2) of the Judiciary Act confers federal jurisdiction on State Courts to determine matters within s 75 of the Constitution, other than those for which the High Court has exclusive jurisdiction under s 38 of the Judiciary Act.
In the recent decision of the Appeal Panel, in Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179, at [9], it was noted that the combined effect of the abovementioned provisions of the Constitution and the Judiciary Act is 'that the exercise by a State court of adjudicative authority in respect of matter listed in ss 75 and 76 of the Constitution, is an exercise of federal jurisdiction' and that this is the case regardless of whether the law to be applied is Commonwealth or State law.
Consideration
As the underlying facts are not disputed, the only matter in issue is whether the Tribunal is exercising State 'judicial power' in determining an application for review under the GIPA Act. If it is, it does not have the authority to do so when the proceedings are between a State and a resident of a different State.
I note that since the hearing of the applicant's application there have been a number of decision of the Tribunal that have considered this issue, including the abovementioned decision of the Appeal Panel: see also Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310 at [18]; EFB v Commissioner of Police, NSW Police Force [2020] NSWCATAD 55 at [29]-[41] and Wojciechowska v Commissioner of Police [2021] NSWCATAD 210 at [28]. In each decision the Tribunal found that the matter before it did not involve an exercise of judicial power. Instead, the Tribunal found that the matter before it was an exercise of administrative power and in my opinion the same applies to this application by the applicant.
As noted by the respondent, the Tribunal is not empowered to authoritatively pronounce on the constitutional limits of its jurisdiction. However, it is able to form an opinion as to the limits of its jurisdiction when considering whether to determine the application that is before it: Gatsby at [281] per Leeming JA and Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242).
Burns v Corbett
I will begin with the decision of the High Court in Burns v Corbett. At [20], the Court (per Kiefel CJ, Bell and Keane JJ) noted that Chapter III of the Constitution does not mandate a single federal judicial system, but it does establish the federal 'Judicature', which may exercise 'adjudicative authority' with respect to matters listed in ss 75 and 76 of the Constitution.
At [21], the Court (per Kiefel CJ, Bell and Keane JJ) said (footnotes deleted):
21. It is convenient to note here that the term "jurisdiction", as it is used in the context of Ch III, is concerned with the exercise of adjudicative authority for the purpose of "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion". That function is the characteristic function of the courts …
At [43], the Court (per Kiefel CJ, Bell and Keane JJ) said:
43. … [Chapter III] contemplates the exercise of adjudicative power only by this Court, by other federal courts created by the Commonwealth Parliament, by State courts invested with such power by the Commonwealth Parliament or by State courts to which such adjudicative authority belongs or in which it is invested. Accordingly, even if the Commonwealth Parliament had made no law under s 77(ii) or (iii), a State law purporting to authorise an agency of the government of a State other than a court to determine, for example, a dispute between residents of different States would be invalid because Ch III left no room for such an adjudication.
In that case, the appellant, Mr Burns, a resident of New South Wales made separate complaints to the Anti-Discrimination Board of NSW (Anti-Discrimination Board) about statements made by Ms Corbett and Mr Gaynor which he alleged to contravene s 49ZT of the Anti-Discrimination Act 1977 (NSW) (Anti-Discrimination Act) (the dispute between Mr Burns and Ms Corbett). At all material times, Ms Corbett and Mr Gaynor were residents of another State, namely Victoria and Queensland.
The Anti-Discrimination Board referred Mr Burns' complaint (the dispute between Mr Burns and Ms Corbett) to the Tribunal: Anti-Discrimination Act, s 93A-93C.
Clause 10(1) of Schedule 3 of the NCAT Act provides that in proceedings relation to a complaint under the Anti-Discrimination Act, the parties to the proceedings are the complainant, who for the purposes of the NCAT Act is to be taken as the applicant, and the respondent to the complaint.
On appeal, the parties accepted that the initial application of Mr Burns to the Tribunal was brought under the 'general' jurisdiction of the Tribunal (i.e. ss 28(2)(a) and 29(1) of the NCAT Act) and that his appeal was brought under s 32 of that Act. It was also agreed that in deciding proceedings under the Anti-Discrimination Act, the Tribunal was exercising State judicial powers: Burns v Corbett, at [27].
At [64], the Court (per Kiefel CJ, Bell and Keane JJ) concluded:
64. Sections 28(2)(a) and (c), 29(1) and 32 of the NCAT Act are invalid to the extent that they purport to confer jurisdiction upon NCAT in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor. Pursuant to s 31 of the Interpretation Act 1987 (NSW) they may be read down to avoid that conclusion so that they do not confer jurisdiction upon NCAT where the complainant and the respondent to the complaint are "residents of different States" within the meaning of s 75(iv) of the Constitution.
That is, the Court found that the abovementioned provisions (i.e. ss 28(2)(a), 29(1) and 32) of the NCAT Act were invalid to the extent they purported to confer State judicial power with respect to subject matters identified in ss 75 and 76 of the Constitution.
While the High Court held that a State law that purports to confer judicial power with respect to the subject matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States is inconsistent with Chapter III of the Constitution and invalid to the extent of that inconsistence. The High Court did not say that the same applies to a State law that purports to confer non-judicial power on a tribunal: Burns v Corbett, at [53] citing K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 at [153]; (2009) 237 CLR 501 at 544.
Other case law
In an earlier decision of the High Court, R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, the Court considered as similar issue in regard to the then Trade Practices Tribunal (Cth) (TP Tribunal). The members of the TP Tribunal, appointed under Part II of the Trade Practices Act 1965-1968 (Cth) (repealed) (TP Act), were not appointed in accordance with the specific tenure requirements prescribed in s 72(ii) of the Constitution. Again, the matter in issue in this case was whether, in the exercise of their powers under Part VI of the Trade Practices Act, the members of the TP Tribunal were exercising the judicial power of the Commonwealth.
The purpose of the TP Act was to preserve competition in Australian Trade and Commerce to the extent required by the public interest. Put simply, under Part VI of the TP Act, the TP Tribunal was given the power to make orders restraining a party(s) from giving effect to, or enforcing an 'examinable agreement' (i.e an agreement between competitor that contains a prescribed restriction), or 'examinable practice' (e.g. the practice of monopolisation) where the Tribunal had determined that the restriction or practice was contrary to the public interest.
In regard to the issue as to whether the TP Tribunal was vested with judicial power or administrative power, at 373-374, Kitto J said:
3. The question is whether the powers which Pt VI thus purports to confer are within the concept of the judicial power of the Commonwealth. Questions of this general description are often difficult to decide, for it has been found impossible to frame an exhaustive definition of judicial power. But this is not to say that the expression is meaningless. The uncertainties that are met with arise, generally if not always, from the fact that there is a "borderland in which judicial and administrative functions overlap" …, so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court. …
4. But I do not think that any such difficulty confronts us here. There are no traditional concepts to be applied …, and two considerations, one negative and the other positive, appear to me when taken together to require the conclusion that the powers entrusted to the Tribunal are essentially non-judicial. The powers must, of course, be performed in a judicial manner, that is to say with judicial fairness and detachment, but the same is true of many administrative powers. Close examination of the relevant provisions of the Act shows, I think, that on the one hand no exercise of any of the Tribunal's powers is an adjudication (in the proper sense of the word), and that on the other hand the result achieved by an exercise of any of the powers is a result foreign to the nature of judicial power.
His Honour went on to describe what is involved in an exercise of judicial power. At 375, His Honour held that the powers of the TP Tribunal did not present any such features because (citations omitted):
6. … [they] are not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations. The Commissioner alone is authorized to institute proceedings before the Tribunal. He is of course a party to the proceedings (see e.g. s. 71), but he does not come before the Tribunal asserting a right to relief in either a personal or a representative capacity. He makes allegations of fact relevant to the questions the Tribunal is required by the Act to consider, and the Tribunal, if it is satisfied that the agreement or practice is examinable, has then to form and give expression to its own opinion as to whether the relevant restriction or practice is "contrary to the public interest". Even where the Commissioner makes submissions on these questions in order to assist the Tribunal, he is not seeking the vindication of any right or obligation. In particular, if he submits that a particular restriction or practice is or is not contrary to the public interest he is not thereby contending that a decision should be made for or against the existence of any right or obligation so as to be binding as between the parties to the restriction or practice, or as between them and either the Crown or the public. The inquiry is not into the validity of the agreement or the legality of the practice, as s. 51 shows most clearly. Even in relation to an agreement, the question is not whether it is contrary to public policy in the sense in which the term is used in the common law: …. The determination does not resolve any question as between opposed interests. It merely records whether the Tribunal has satisfied itself, first, that an agreement or practice has the characteristics which the Act comprehends in the word "examinable", and, secondly, that the restriction or practice, if examinable, is contrary to the public interest. Such determinations as these have quite often to be made in the exercise of administrative power. …
Windeyer J, at 399, noted that the exercise of judicial power under Chapter III of the Constitution means more than mere adjudication. His Honour went on to say "Duties of adjudication may be incidental to administrative tasks which are performed as part of the executive power of the government.' In this regard he gave the example of a police officer when arresting a man and charging him with a specific offence. In doing so, the police officer must make findings of fact and as to the law that is to be applied.
At 400, His Honour said:
…[ the] adjudication of whether a matter is "contrary to the public interest" - that phrase seems to me to embody considerations much further removed from traditional judicial concepts than those which the words "just and equitable" express when applied in a controversy between parties. The public interest is a concept which attracts indefinite considerations of policy that are more appropriate to law-making than to adjudication according to existing law. The Act directs the Tribunal as to matters it is to "take into account" in considering what the public interest requires. The generality of these matters prevents their providing objectively determinable criteria. In the result the jurisdiction of the Tribunal to make determinations and orders depending upon its view of where the public interest lies and what the public interest requires seems to be an exercise of a legislative or administrative function of government rather than of the judicial power.
In Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179, at [13]-[14] the Appeal Panel noted the decision of Quigley J in Barnsley v Darebin City Council [2021] VCAT 104 and said:
13 … [Quigley] J held that the exercise of power under that provision is an exercise of administrative power, not judicial power. Her honour quoted the following principle from PJB v Melbourne Heath (2011) 39 VR 373 at [124] (Patrick's case):
it is a judicial function to make binding determinations of existing legal right, while it is an administrative function to exercise discretionary authority to make orders creating new rights and obligations, especially on the basis of policy considerations
14 That principle was derived, in part, from the requirement that for there to be a "matter", there must be an "immediate right, duty or liability to be established by the determination of the Court": Palmer v Ayres [2017] HCA 5 at [27] citing In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. Applying that principle, Quigley J concluded at [43], that:
The grant of a planning permit pursuant to the provisions of the P&E Act is not an adjudication on an existing right, liability or duty. It is the exercise of administrative power. The review of the responsible authority's decision by the Tribunal pursuant to the provisions of the P&E Act and the VCAT Act is a review of the initial administrative decision in which the Tribunal stands in the shoes of the original decision-maker. The decision of the Tribunal in the grant of a permit creates a new right. It does not determine existing rights. The power exercised by the Tribunal fits squarely within such a definition of an exercise of administrative power.
In Director of Housing v Sudi [2011] VSCA 266, at [204] -[206], Weinberg JA made the following observations about judicial power and executive (i.e. administrative) power (footnotes omitted):
204 Judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist at the moment proceedings are commenced. It involves the resolution, by an appropriate authority, of a dispute by a determination that is final and binding. In that regard, the means by which a particular body's decisions are enforced can be important. The fact that a tribunal's decisions can be enforced simply by registration with a court is generally an indication that the tribunal is exercising judicial, and not executive, power
205 Any function that involves the creation of new rights is not judicial.
206 It must be borne in mind that some powers can be validly exercised both by courts and by tribunals. However, any function that requires a tribunal to decide a dispute according to executive policy, rather than in accordance with legal standards, is not judicial.
In Morris v Riverwild Management Pty Ltd [2011] VSCA 283; (2011) 38 VR 103, [63], His Honour made the following obiter remark (footnotes omitted):
63 VCAT is, of course, an independent statutory tribunal. However, it is not a court. Insofar as it exercises 'original jurisdiction', as it did in this case, it carries out a statutory function that in some ways resembles the exercise of judicial power. Insofar is it exercises 'review jurisdiction', it is plainly engaged in a purely administrative task.