Beer v Commissioner of Police, New South Wales Police Force

[2014] NSWCATAD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Beer v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 23

Hearing dates:

On the papers

Decision date:

03 March 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P Molony, Senior member

Decision:

Mr Beer's application for his name not to be disclosed under s 75(2)(b) of the Administrative Decision Tribunal Act 1997

Is refused

Legislation Cited:

Administrative Decision Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009

Cases Cited:

AJO v Director-General Department of Transport [2012] NSWADT 101
Beer v Commissioner of Police NSW Police Force [2013] NSWADT 243
Howe v Veterinary Surgeons Investigating Committee (GD) [2003] NSWADTAP 14
QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59
John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465
Z -v- University of A, Dr D & B (No.4) [2002] NSWADT 14

Category:

Interlocutory applications

Parties:

Peter Beer (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Applicant - In person
Respondent - Sparke Helmore Lawyers

File Number(s):

123342

reasons for decision

Background

1. Mr Beer made an application to the Administrative Decisions Tribunal (the ADT) under the Government Information (Public Access) Act 2009 (the GIPA Act). The major issue in that proceeding was whether the Commissioner of Police had conducted an adequate search for the information that Mr Beer had requested. On 4 October 2013 I found that search had been adequate and affirmed the Commissioner's decision that the Agency did not hold that information: see Beer v Commissioner of Police NSW Police Force [2013] NSWADT 243

1. The information Mr Beer had sought was an interview report relating to an interview of him by two police officers at Fairfield Police Station in June or July 1972. He also wanted the names and ages of the officers involved, a copy of "so-called" witness statements and the name of "the accuser."

1. Mr Beer wrote to the Tribunal requesting that his name be anonymised in that decision, so that his identity would not be apparent. At my request the Registrar sought the views of the Commissioner with respect to Mr Beer's request. The Commissioner considered it a matter for the Tribunal.

1. I declined to order that his name and identity not be disclosed.

1. On 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with the provisions of the GIPA Act continuing to apply.

1. I have since been requested to provide reasons for that decision these are those reasons.

Non-Disclosure of parties to proceedings

1. Anonymisation is a device used by this Tribunal and the Courts to protect the identity of parties or witnesses in proceedings. In the ADT s 126 of the Administrative Decision Tribunal Act 1997 (the ADT Act) prohibited the disclosure, broadcasting or publication of the names of witnesses or parties in certain proceedings. Sub-section (1A) was concerned with the proceedings to which that provision applied. It said -

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 50 of the NSW Trustee and Guardian Act 2009 ,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the NSW Trustee and Guardian Act 2009 ,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section

Anonymization was the device used to comply with s 126.

1. Section 126 did not apply to proceedings under the GIPA Act.

1. That being the case the Tribunal's power to suppress disclosure of Mr Beer's identity was that found in section 75 of the ADT Act. This relevantly provided -

(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) ...

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) ...

(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies

1. The ADT had published a guideline, the Publication, Anonymisation and Suppression: Guideline, which allowed applicants to apply for anonymisation under s 75 in writing. The Guideline instructed that the practice in applications under the GIPA Act was to consider such requests at first planning meetings. In this case, the issue was not raised by Mr Beer until after the matter was reserved for a decision on the papers.

1. The general rule that proceedings are to be open to public scrutiny is a reflection of a fundamental precept of the common law concerning the administration of justice. In John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 McHugh JA, with whom Glass JA agreed, explained-

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the

order is necessary is insufficient. When the court is an inferior court, the order must do no more than is necessary to enable it to act effectively within its jurisdiction. ...

1. In the case of the ADT however, the legislature gave the Tribunal specific powers to limit the publication of identifying material relating to parties and witnesses, where it is "desirable" to do so: s 75(2)(b). In QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59 the Appeal Panel observed that -

Unsurprisingly, statutory powers ... such as s 75(2) of the Tribunal Act, are strictly and narrowly construed, and operate only if and when there is a public interest supporting their use which outweighs the public interest in the implementation of the fundamental principles of open justice and procedural fairness: see, eg, Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 55; ABC v Parish [1980] FCA 33; (1980) 29 ALR 228 at 233-234 and 236; Mirror Newspapers Limited v Waller (1985) 1 NSW LR 1 at 20; Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 (26 March 2004), citing Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247. Further, confidentiality must be restricted to that part of the hearing or that part of the evidence for which it is necessary in the interests of justice.

1. In Z -v- University of A, Dr D & B (No.4) [2002] NSWADT 14 the Tribunal observed, at [8]:

Section 75(1) of the Tribunal Act reflects the general principle that justice should be administered openly, whether in a court or in a tribunal. In Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 Kirby P (as he then was) said the following:

"... by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice: see Australian Broadcasting Corporation v Parish [1980] FCA 33; (1980) 43 FLR 129 at 133, 135-136; [1980] FCA 33; 29 ALR 228 at 233 - 234, 236: see also Re Armstrong and State of Wisconsin (1972) 7 CCC (2d) 331; CB v The Queen (1982) 62 CCC (2d) 107."

1. This reference was cited with approval by the Appeal Panel in Howe v Veterinary Surgeons Investigating Committee (GD) [2003] NSWADTAP 14 at [70] where the Tribunal emphasised the importance of the public "right to know." There, the right was to know of conclusions reached in disciplinary proceedings. Here, that right is a statutory right to access to government information: see s 3(b) of the GIPA Act.

1. Mr Beer's application for access to information under the GIPA Act related to information concerning allegations said to have been made against him 40 years ago, when he was a teenager. Those allegations, on his own evidence, never resulted in him being charged or any other official action being taken against him. His GIPA application turned on whether the Commissioner had made an adequate search of the Agency's records in an effort to find information responsive to his request. I was satisfied that it had done so.

1. Mr Beer sought to characterise his application as one concerning his conduct when a child and sought to rely on the recognised need to protect the identity of children in proceedings As I observed in AJO v Director-General Department of Transport [2012] NSWADT 101 at [4] -

There are sound public interests underlying such provisions, grounded in the protection of children and the maintenance of their best interest.

1. That public interest does not, in my opinion, extend so as to require the protection, in proceedings under the GIPA Act, some forty plus years after the events in issue, of the identity of an individual who was then a child and who was questioned, but never the subject of adverse action, about an offence. Indeed Mr Beer's application under the GIPA Act, if successful, would have resulted in police records relating to his identity, and the fact that he was questioned about an offence when a teenager, being released without conditions or limitations: see s 15(e) and s 75 of the GIPA Act.

1. I am unable to see any public interest that requires that Mr Beer's identity not be disclosed in the Tribunal's public record of its decision. Persons such as Mr Beer should be aware that by making applications for access under that Act they are seeking release of the information without condition. By seeking administrative reviews under the GIPA Act they are participating in a process in which their identity is likely to be publicly revealed, unless there is a countervailing public interest that makes it desirable that their identity not be disclosed.

1. In Mr Beer's case there is no such public interest.

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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

Decision last updated: 03 March 2014