AB v NSW Commissioner of Police

The plaintiff, AB, brought an action against the New South Wales Commissioner of Police, alleging a breach of duties owed to an informant, breach of promises, and a statutory duty. AB gathered information from the Australian Federal Police and former police officers. The case involved implied undertakings, a release from the Harman undertaking, and the variation of a non-publication order. The primary concern was the disclosure of materials relating to police informants, also known as "human sources." The non-publication order had been made to protect the safety of the plaintiff. The sources of the material did not oppose the release from the undertaking. The disclosure was intended for Ministers of the Crown. There was opposition to the orders, which was described as puzzling. The case required the court to consider the relevant factors in determining whether to release materials and the safety implications for the plaintiff.

The court had to decide whether to vary the non-publication order and release the materials to the Ministers of the Crown. The key issue was balancing the need to protect the identity of the informants against the public interest in transparency and the potential safety implications for the plaintiff. The court also considered the "safe hands" process, where the materials would be disclosed to the Ministers directly, aiming to minimise the risk of unauthorised disclosure. The opposition from some parties was noted, but the primary concern remained the safety of the plaintiff and the need to protect the informants.

In reaching its decision, the court carefully weighed the interests at stake. It found that the safety of the plaintiff was paramount and that the informants did not oppose the release of the materials. The court determined that the "safe hands" process provided an adequate safeguard against unauthorised disclosure. The variation of the non-publication order was deemed necessary to allow for the disclosure to the Ministers of the Crown. The court concluded that the public interest in transparency outweighed the potential risks, provided the materials were handled with the utmost care. The opposition to the orders was found to be puzzling, given the safeguards in place.

The court ordered the variation of the non-publication order to allow the disclosure of materials to the Ministers of the Crown, subject to the "safe hands" process. The court emphasised the importance of protecting the safety of the plaintiff and the informants. The decision highlighted the need for careful consideration of the risks and benefits in cases involving the disclosure of sensitive information. The court's ruling provided clarity on the relevant considerations and the appropriate safeguards in such cases.