AEZ v Commissioner of Police, NSW Police Force

[2012] NSWADT 199

Administrative Decisions Tribunal

New South Wales

Case Title:

AEZ v Commissioner of Police, NSW Police Force

Medium Neutral Citation:

[2012] NSWADT 199

Hearing Date(s):

30 July 2012

Decision Date:

30 July 2012

Jurisdiction:

General Division

Before:

P H Molony, Judicial Member

Decision:

1. Pursuant to s 107 of the Government Information (Public Access) Act 2009 and s 75 of the Administrative Decisions Tribunal Act 1997 the Tribunal prohibits the disclosure to all parties other than the Respondent, and to the public, of the statement of [name] dated 10 February 2012 with the exception of;

(a)all of paragraph 27;

(b)the first sentence of paragraph 28;

(c) all of paragraph 29; and

(d) the first sentence of paragraph 30.

2.2. The Respondent shall file and serve a copy of those parts of the statement to which s107 does not apply within 7 days.

Catchwords:

Government Information Pubic Access - suppression order

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009

Cases Cited:

Texts Cited:

Category:

Principal judgment

Parties:

AEZ (Applicant)
Commissioner of Police (Respondent)

Representation

- Counsel:

- Solicitors:

Van Cooney Lawyers (Applicant)
Sparke Helmore (Respondent)

File number(s):

113364

Publication Restriction:

The disclosure or publication of paragraphs 7, 8 and 9 of these reasons to any party other than the Respondent, and to the public, is prohibited.

REASONS FOR DECISION

Introduction

1. These reasons relate to a suppression and non-disclosure order I made in these proceedings under the Government Information (Public Access) Act 2009 on 30 July 2012. The order I made was that -

   1. Pursuant to s 107 of the Government Information (Public Access) Act 2009 and s 75 of the Administrative Decisions Tribunal Act 1997 the Tribunal prohibits the disclosure to all parties other than the Respondent, and to the public of the statement of [name] dated 10 February 2012 with the exception of;

   (a) all of paragraph 27;

   (b) the first sentence of paragraph 28;

   (c) all of paragraph 29; and

   (d) the first sentence of paragraph 30.

   2. The Respondent shall file and serve a copy of those parts of the statement to which s107 does not apply within 7 days.

2. AEZ, the applicant in the proceeding, has since sought written reasons for decision. This is so despite the fact that I made it clear, when making the order, that s 107 of the GIPA Act prohibited the Tribunal disclosing its reasons for making such an order, when its reasons for decision would disclose information for which it is claimed there is an overriding public interest against disclosure. That section provides -

   (1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

   (2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

   (3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

   (a) the public and the applicant, and

   (b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

3. I made that order following a confidential hearing in which I heard submission for the Commissioner of Police, all other parties and the public having been excluded from the hearing under s 75(2) of the Administrative Decisions Tribunal Act 1997. The purpose of that confidential hearing was to consider whether all or part of the statement should be subject to suppression and non-disclosure order in order to comply with s 107 of the GIPA Act.

4. At the conclusion of that confidential hearing, the hearing was again opened to the public. At that time I indicated, and I again do so now, that it is not possible for me to give detailed reasons for the order I made without disclosing information for which the Commissioner of Police claims there is an overriding public interest against disclosure. To provide details of my reasons for making the suppression order would involve a disclosure of information that the Tribunal is bound not to disclose.

5. In these reasons I propose to briefly outline that reasoning. However, in order to comply with s 107 of the GIPA Act I will make orders prohibiting the disclosure or publication of those paragraphs (7, 8 and 9), which outline those reasons, to any party other than the Respondent, and to the public.

6. I appreciate that this means that AEZ will not be cognizant of all the evidence relied on by the Commissioner of Police in respect to her application under the GIPA Act, and do not like the fact that this denies her a degree of procedural fairness. Parliament, however, has seen fit to clearly and unambiguously enact s 107 knowing of that consequence and allowing for it. This Tribunal is bound by the legislation.

7. Subject to suppression order

8. Subject to suppression order

9. Subject to suppression order.

10. If it is ultimately determined that there is no overriding public interest against the disclosure of the information, then the suppression order will be revisited.

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