Commissioner of Police v Attorney General for New South Wales

[2024] NSWCA 150

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Commissioner of Police v Attorney General for New South Wales [2024] NSWCA 150

Hearing dates:

9 May 2024

Date of orders:

19 June 2024

Decision date:

19 June 2024

Before:

Ward P at [1]; Gleeson JA at [147]; Adamson JA at [152]

Decision:

1.   Dismiss the summons with no order as to costs.

Catchwords:

STATUTORY INTERPRETATION – proper construction of s 114(3)(d) of the Law Enforcement Conduct Commission Act 2016 (NSW) – whether Commissioner of Police can object to production of documents to the Law Enforcement Conduct Commission relating to a critical incident investigation on grounds of public interest immunity – whether public interest immunity abrogated by necessary intendment

Legislation Cited:

Law Enforcement Conduct Commission Act 2016 (NSW), ss 3, 4, 17, 18, 25, 44, 49, 51, 54, 55, 56, 57, 58, 74, 108, 110, 111, 112, 113, 114, 115, 116, 117, 148, 179, 180

Supreme Court Act 1970 (NSW), s 48

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Alister v The Queen (1983) 154 CLR 404

Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch [2024] NSWCA 24

CFMEU v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36

Church of Scientology Inc v Woodward (1982) 154 CLR 25

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Commissioner of Police (NSW) v Guo (2016) 69 AAR 74

Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595

Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4

Jacobsen v Rogers (1995) 182 CLR 572; [1995] HCA 6

Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39

McQueen v Parole Board Queensland [2022] QSC 27

Middendorp Electric Co Pty Ltd v Law Institution of Victoria [1994] 2 VR 313

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Lewes Justices, Ex parte Secretary of State for the Home Department [1973] AC 388

RP Data Ltd v Land Information Authority (WA) (2010) 188 FCR 378; [2010] FCA 922

Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43

Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Tjungarrayi v Western Australia (2019) 269 CLR 150; [2019] HCA 12

Victoria v Seal Rocks Victoria (Australia) Pty Ltd (2001) 3 VR 1; [2001] VSCA 94

Conway v Rimmer [1968] AC 910

Hurt v The King (2024) 98 ALJR 485; [2024] HCA 8

Texts Cited:

Explanatory Note to the Law Enforcement Conduct Commission Bill 2016 (NSW)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2016

NSW Department of Justice, Review of Police Oversight (Tink Report) (August 2015)

Law Enforcement Conduct Commission, Open Decision on objection by the NSW Police Force to production of documents required by the Commissioner under s 114(3)(d) Law Enforcement Condition Commission Act 2016 (NSW), 28 February 2024

Peter Hogg and Patrick Monahan, Liability of the Crown (Carswell, 3rd ed, 2000)

Category:

Principal judgment

Parties:

Commissioner of Police (NSW) (First Applicant)
Detective Inspector Trent Power (Second Applicant)
Detective Acting Inspector Dean Latham (Third Applicant)
Attorney General for New South Wales (First Respondent)
Chief Commissioner, Law Enforcement Conduct Commission (Second Respondent)

Representation:

Counsel:
D Hume (Applicants)
J Emmett SC with E Jones (First Respondent)

Solicitors:
Makinson d’Apice Lawyers (Applicants)
Department of Communities and Justice (First Respondent)

File Number(s):

2024/00086203

Publication restriction:

Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Court of Appeal has determined an application for declaratory relief (refusing to grant the declaration sought) brought by the Commissioner of Police and two police officers (the applicants) as to the proper construction of s 114(3)(d) of the Law Enforcement Conduct Commission Act 2016 (NSW) (LECC Act), relevantly as to whether the common law principles of public interest immunity have been abrogated in relation to documents required to be produced to the Law Enforcement Conduct Commission (LECC) pursuant to that section.

LECC is currently monitoring two separate critical incident investigations pursuant to Pt 8 of the LECC Act. On 31 January 2024, two notices were issued by LECC under s 114(3)(d) of the LECC Act (which empowers LECC to obtain access to documents obtained or prepared by police for the purposes of critical incident investigations (as defined under the LECC Act)). The notices were issued to the relevant police officers. The first of the two notices (First Notice) required the provision of “State Technical Investigation Branch” surveillance records, and “iSURV logs” relating to the critical incident in question (both being contemporaneous records of the incident). The second of the two notices (Second Notice) required the provision of the relevant “iSURV logs” and a copy of the “Less Lethal Manual” (which details, inter alia, the conduct of police operations) in relation to the other critical incident.

The Commissioner of Police objected to the production of the documents demanded under the First Notice and the Second Notice invoking public interest immunity. After a preliminary hearing solely on the issue of construction, it was concluded by the Chief Commissioner of LECC in a decision dated 28 February 2024 (the Open Decision) that common law public interest immunity principles have no application in regard to s 114(3)(d) of the LECC Act. In that Open Decision, the Chief Commissioner concluded that “there has been a targeted exclusion of common law [public interest immunity] principles with respect to a class of documents which are essential for [LECC] to discharge its independent real time monitoring function of police critical incident investigations”.

The sole issue before the Court of Appeal was one of statutory construction: whether s 114(3)(d) of the LECC Act manifests an intention to exclude public interest immunity or, framed differently, whether that section manifests an intention to require access to documents to be given to LECC even where the public interest in non-disclosure outweighs the public interest in disclosure.

The Court held (Ward P, Gleeson and Adamson JJA agreeing), refusing the orders sought by the applicants:

1. The stated legislative object that there be “independent oversight and real time monitoring” by LECC, together with the obligation imposed by s 117 of the LECC Act on LECC to provide advice as to whether it considers the investigation was fully and properly conducted or deficient (potentially during the course of the investigation), provides clear indication that the legislature intended that LECC would oversee and monitor critical incident investigations as they occur, and accordingly be provided with all relevant materials to enable it to satisfy its obligation under s 117: [126]-[129], [133]- [137] (Ward P); [147] (Gleeson JA); [155]-[158] (Adamson JA).

2. The obligation to work co-operatively in the discharge of the parties’ respective functions favours the conclusion that the legislature intended that public interest immunity be abrogated with respect to the production of all relevant documents. That said, this duty could reasonably extend to attempting to reduce the scope or manner of production, or to redact or anonymise names contained in documents: [130]-[131], [142] (Ward P); [147] (Gleeson JA); [152] (Adamson JA).

3. The fact that Pt 6 of the LECC Act adverts to the abrogation of privileges, and Pt 8 does not, does not suggest that Pt 8 cannot by necessary implication also have abrogated public interest immunity. Parts 6 and 8 are directed to different matters: the former focussing on privileges that may be invoked by an individual required to produce documents or attend for examination, the latter focussing on oversight by LECC of critical incident investigations: [132] (Ward P); [147] (Gleeson JA); [154] (Adamson JA).

4. Section 179 sets up a regime whereby the Commissioner of Police may notify LECC of “critical police information”, the disclosure of which may be prejudicial to an investigation or otherwise contrary to the public interest. This section does not inform the issue before the Court. It is not concerned with the disclosure of material which might otherwise be subject to a public interest immunity claim (insofar as the classification of such information as “critical police information” is for the determination of the Commissioner of Police, rather than the objective fact as to the public interest): [138]-[139] (Ward P); [147]-[151] (Gleeson JA); [159]-[160] (Adamson JA).

5. It is neither necessary nor appropriate to consider what implications this conclusion may have on other privileges or immunities: [135] (Ward P).

Judgment

1. WARD P: By summons filed on 6 March 2024 invoking the summary jurisdiction of this Court, the applicants (the Commissioner of Police (NSW) and two police officers, Detective Inspector Power and Detective Acting Inspector Dean Latham) seek declaratory relief as to the proper construction of s 114(3)(d) of the Law Enforcement Conduct Commission Act 2016 (NSW) (LECC Act). The respondent to the proceedings is the Chief Commissioner of the Law Enforcement Commission (the Chief Commissioner), who filed a submitting appearance on 25 March 2024. Intervening and appearing in the proceedings as contradictor is the Attorney-General of New South Wales (the Attorney). Written submissions filed by the applicants name the Attorney as the first respondent and the Chief Commissioner as the second respondent.

2. The summons was filed in the original jurisdiction of this Court pursuant to s 48 of the Supreme Court Act 1970 (NSW) and ss 18 and 114 of the LECC Act.

3. The filing of the summons followed a preliminary hearing and decision by the Chief Commissioner as to the proper construction of s 114(3)(d) of the LECC Act, namely whether the common law principles of public interest immunity have been abrogated. The Chief Commissioner concluded in an Open Decision issued by the Chief Commissioner on 28 February 2024 (Open Decision) that, on the proper construction of ss 3, 54-56, Pt 8 and s 179 of the LECC Act, common law public interest immunity principles have no application in response to a s 114 requirement with respect to the class of public interest immunity concerning police information as described in s 179(2) of the LECC Act ((see [120]), the Open Decision, Exhibit A to the affidavit affirmed 6 March 2024 by Sally Kirk, the solicitor with carriage of this mater on behalf of the applicants).

4. In other words, the Chief Commissioner decided that s 114(3)(d) of the LECC Act obliged the applicant police officers, to whom notices had been issued under that sub-section (see below) to produce or provide access to documents or information notwithstanding that public interest immunity might (or did) attached. The Chief Commissioner did not deal in the preliminary hearing with the question whether public interest immunity actually attached to any of the documents the subject of the notices and the applicants here emphasise that determination of that awaits a hearing for another day (if their construction of s 114(3)(d) is found to be correct).

5. The applicants here seek a declaration, framed in the alternative, (see prayer 7) that:

… section 114(3)(d) of the Law Enforcement Conduct Commission Act 2016 (NSW) (LECC Act) does not compel the provision to the Defendant [sic; presumably meaning LECC, the respondent] of access to documents where:

(a)   public interest immunity attaches to those documents; or

(b) further, or alternatively, the public interest in not providing the Defendant with access to those documents in response to a notice under section 114(3)(d) outweighs the public interest in providing the Defendant with access to those documents under such a notice.

6. Counsel for the applicants has explained the distinction between the two alternative versions of the declaration as being that (a) is drafted in conclusory terms as to when public interest immunity attaches to a document whereas (b) exposes the reasoning underpinning a conclusion that public interest immunity relevantly attaches to a document (see AT 2). Explained in that way, the Attorney expressed no preference as to the form of declaration if one were to be granted.

7. The Attorney resists the making of such a declaration in either form, submitting that it would be contrary to the proper construction of s 114(3)(d).

Background

8. The Law Enforcement Conduct Commission (LECC), a corporation constituted by s 17 of the LECC Act, is currently monitoring two critical incident investigations pursuant to Pt 8 of the LECC Act, each incident involving the death of a person during a police operation. On 31 January 2024, two notices were issued by LECC pursuant to s 114(3)(d) of the LECC Act, one in respect of each critical incident.

9. One of the two notices (the First Notice, bearing reference CIM231129) was issued to Detective Inspector Power for the stated purpose of monitoring a critical incident investigation arising from the death of David Whelan at Bowenfels on 16 July 2023. The First Notice required the provision of “a copy of the State Technical Investigation Branch surveillance records (REC-3) and iSURV logs (OBJ01) relating to” the critical incident. “State Technical Investigation Branch surveillance records” generally contain information obtained or generated by police during negotiations. “iSURV logs” are generated by police officers in a siege or hostage situation and thus provide a contemporaneous record of police actions.

10. Pausing here, it may be noted that the Chief Commissioner explained in his Open Decision (which is not binding on this Court but to which regard may be had) that it is not uncommon for critical incident investigations to arise out of siege and negotiation scenarios culminating in the death or serious injury of a person and that, as a result, “iSURV logs” and “State Technical Investigation Branch surveillance records” are documents sought regularly by the LECC when carrying out its “real time monitoring” function under Pt 8.

11. The second of the two notices (the Second Notice, bearing reference CIM231478) was issued to Detective Acting Inspector Latham for the stated purpose of monitoring a different critical incident investigation, this arising from the death of Krista Kach at Stockton on 14 September 2023. The Second Notice required provision of “a copy of the Less Lethal Manual and iSURV logs (OD-138, OD-137, OD-136, OD-12) relating to” the critical incident. The “Less Lethal Manual” is a manual relating, inter alia, to the conduct of police operations.

12. The applicants objected to the production of the documents called for in the two notices (being the ”Less Lethal Manual”, the “iSURV logs” and the “State Technical Investigation Branch surveillance records”).

13. Prior to the issuing of the said notices, there had been communications between LECC and the Commissioner of Police, in which the latter had indicated that there were grounds on which public interest immunity might be claimed in respect of material covered by the (then foreshadowed) notices. The view taken by the Commissioner of Police was that, on its proper construction, s 114(3)(d) of the LECC Act did not abrogate public interest immunity, with the result that the notices did not compel the production to LECC of documents covered by public interest immunity. LECC, on the other hand, took the view that a public interest immunity claim in this context was misconceived and that the appropriate course, if public interest immunity was sought to be invoked, would be pursuant to s 179 of the LECC Act (see further below) which applies where the Commissioner of Police considers that there is critical police information the disclosure of which would be contrary to the public interest.

14. Further, LECC considered that the matter involved important issues of statutory construction of the LECC Act concerning the monitoring of critical incident investigations; and that these should be dealt with in a separate hearing.

15. On 16 February 2024, there was a hearing before LECC confined to the issue of statutory construction raised in the communications between the parties, namely, whether s 114(3)(d) abrogated public interest immunity. The sole issue at the hearing was the issue of construction of the legislation. As noted earlier, the question whether public interest immunity in fact attached to any of the documents the subject of the notices was deferred; and no evidence on that topic was adduced at the hearing before the Chief Commissioner.

16. On 28 February 2024, the Chief Commissioner issued both an Open Decision (Ex A) and a Confidential Decision (Confidential Ex B) ruling on the issue of statutory construction. As adverted to above, the Chief Commissioner concluded (at [120] of the Open Decision) that:

[T]he proper construction of ss 3, 54-56, Part 8 and 179 of the LECC Act leads to the conclusion that common law PII principles have no application in response to a s 114 requirement with respect to the class of PII concerning police information as described in s 179(2).

17. The Chief Commissioner also concluded that “common law PII principles have been modified by provisions in the LECC Act with respect to police information” and that “[i]n this way, there has been a targeted exclusion of common law PII principles with respect to a class of documents which are essential for the Commission to discharge its independent real time monitoring function of police critical incident investigations”.

18. The Chief Commissioner did not accept that the express abrogation of common law public interest immunity in s 56 (and the absence of a similar provision with respect to critical incident investigation monitoring under Pt 8 of the LECC Act) had any significant bearing on the issues for determination as to the construction of s 114(3) (see [78] of the Open Decision). Rather, the Chief Commissioner considered that there was a significant difference between ss 54-56 of the LECC Act and s 179 (see [75]ff of the Open Decision), relevantly, that s 56 is in Pt 6 of the LECC Act, which relates to the compulsory production of information from any person, whereas s 179 only applies to information provided by the Commissioner of Police (or the Crime Commissioner) and thus “operates in the context of the special relationship between the Commission and the NSW Police Force” (see Open Decision at [77]).

19. Following the filing of the applicants’ summons in this Court on 6 March 2024, seeking relief from the whole of the LECC decision, LECC has extended the time for production under the two notices until 7 days after the hearing and determination of the present proceedings.

Issue

20. As framed in the applicants’ submissions, the issue is whether s 114(3)(d) of the LECC Act manifests an intention to exclude public interest immunity or, expressed differently, whether the section manifests an intention to require access to documents to be given to LECC even where the public interest in not giving access outweighs the public interest in giving access.

21. Both parties accept that the issue as to whether s 114(3) empowers LECC to compel production of documents subject to public interest immunity is an issue of law which turns on the proper construction of s 114(3); and that s 114(3) is to be construed by reference to its text, construed in context, and in light of its statutory purpose. There was no dispute as to the applicable principles of statutory interpretation.

22. The applicants do, however, explain that the constructional issue is not determined or affected by whether any of the documents the subject of the two notices is in fact protected by public interest immunity; that issue being one which the applicants say will arise if the declaration they seek is made and the matter returns to LECC or the Supreme Court for determination of the objection to production of, or access to, documents in respect of which public interest immunity is said to attach.

Legislative provisions

23. It is helpful at this point to set out the structure of the LECC Act and the text of various of the provisions contained in it.

24. The objects of the LECC Act are set out in s 3, and I will return to these shortly. Part 2 deals with interpretation and key concepts; Pt 3, the constitution and management of LECC; and Pt 4, the functions of LECC. Part 5 is headed “dealing with misconduct matters”. Part 6 contains the investigation powers of LECC and, again, I will return to some of the provisions in Pt 6 shortly. Part 6A contains protections for persons assisting LECC or the Inspector (the latter as provided for in Pt 9). There then follows Pt 7, headed oversight of police and Crime Commission investigations, and, relevantly for present purposes, Pt 8, headed “Oversight of critical incident investigations”. Part 10 sets out the functions of the Parliamentary Joint Committee; Pt 11 deals with reports by LECC; Pt 12, offences; and Pt 13, the relationship of LECC with other agencies. Part 14 contains provisions relating to secrecy and confidentiality. Part 15 contains miscellaneous provisions.

25. The objects of the LECC Act, to which LECC is required to have regard when exercising its functions under the Act (see s 25(2)), are set out in s 3(a)-(j). They commence with the promotion of the integrity and good repute of the NSW Police Force (the Police) and the Crime Commission (see at (a)); to provide for the independent detection, investigation and exposure of possible or potential serious misconduct and serious maladministration within the Police and the Crime Commission (see at (b)); and to prevent officer misconduct and officer or agency maladministration by various means (see at (d)). Section 3 specifies a number of objects relating to the oversight of various investigations (see (c), (h), and (j)).

26. The term “oversight” is defined in s 4 as:

Oversight of an agency by the Commission means holding the agency to account through the scrutiny, review and monitoring by the Commission under this Act of the exercise by the agency of its functions.

27. Relevantly, those oversight objectives in s 3 include:

(c)   to provide for independent oversight and review (including, where appropriate, real time monitoring and review) of the investigation by the NSW Police Force of misconduct matters concerning the conduct of its members and the Crime Commission concerning its officers,

…

(h)   to provide for independent oversight and real time monitoring of critical incident investigations undertaken by the NSW Police Force.

28. The Attorney points out that, whereas “real time monitoring” is only to be “where appropriate” for the purposes of the object in 3(c), there is no such qualification in 3(h).

29. There is no definition in the LECC Act of “real time monitoring”. The term appears to have derived from the Parliamentary report which led to the enactment of the LECC Act (the Tink report – see below). The applicants accept that what is obviously intended is that there be no significant or material delay between the monitoring and the investigation itself (see AT 11.20) i.e., that there be some relative contemporaneity between the two; and this points somewhat in favour of the Attorney’s construction of s 114(3)(d) of the Act (see AT 11.34-41).

30. Part 6 of the LECC Act applies in respect of investigations into conduct falling with s 51, in essence possible or potential serious misconduct or serious maladministration.

31. “Investigation” is defined in s 4 as meaning “an investigation by the Commission under Pt 6 and includes, in relation to serious misconduct or serious maladministration, an examination under that Part”.

32. Division 2 of Pt 6 deals with powers to obtain information, documents and other things for the purposes of an investigation. Section 54 confers the power, by notice, to require the preparation and production of a statement of information. Section 55 confers the power, by notice, to require a person to attend at a time and place and to produce specified documents or things. Section 58 confers the power for a Commissioner or an officer of LECC (authorised in writing by LECC) to enter and inspect premises occupied or used by a public authority or public official in that capacity and to inspect any documents or thing in or on the premises and take copies of any document in or on the premises. Sub-sections 54(4)(a) and 55(3) each provide penalties for a person who “without reasonable excuse” fails to comply with a notice served under the respective section.

33. Section 56 headed “Abrogation of privileges” applies where, under s 54 and 55 of the LECC Act, production of a statement of information or any document or other thing is required. Section 56(2) provides that LECC “must” set aside the requirement if it appears to it that any person having a ground of privilege under which, in proceeding in a court of law, the person might resist a like requirement and it does not appear to the LECC that the person consents to compliance with the requirement. However, s 56(3) abrogates public interest immunity as a basis for resisting production under ss 54 and 56, by providing, relevantly, that:

The person must, however, comply with the requirement despite –

(a)   any rule that in proceedings in a court of law might justify an objection to compliance with a like requirement on grounds of public interest

…

34. The applicants say that (subject to sub-s (3)), s 56(2) would give a significant degree of protection to public interest immunity because it goes beyond common law public interest immunity principles (which operate where, as a jurisdictional fact, there is a ground of privilege) and operates merely where it appears to LECC that the person has a ground of privilege (see AT 12.38).

35. Section 57, headed “self-incrimination”, applies if, because of s 56(3), any person (other than a body corporate) must comply with a requirement under s 54 or s 55 to produce any statement of information or document or other thing. In substance, sub-s 57(2) provides a form of use privilege. If the statement, document or other thing tends to incriminate the person, and the person objects to production at the time required to produce it, then neither the fact of the requirement nor the statement, document or thing (if produced) may be used in any proceedings against the person except as provided in sub-s 57(2) but the statement, document or thing may be used for the purposes of the investigation concerned, despite the person’s objection.

36. Similarly to s 56(2), the powers under s 58(3) must not be exercised if it appears to the Chief Commissioner or authorised officer that a person has a ground of privilege under which, in proceedings in a court of law, a person might resist inspection of premises or production of a document, but (under sub-s(4)) there is a similar provision that the powers may be exercised despite (a) any rule of law that in proceedings in court might justify an objection thereto.

37. Division 3 of Pt 6 deals with examinations for the purposes, inter alia, of investigations of conduct that LECC has decided is (or could be) serious misconduct or serious maladministration. Such an examination must be held by the Chief Commissioner, Commissioner or an Assistant Commissioner as determined by the Chief Commissioner; and may be held in public or in private, as to which, subs-(5) sets out certain mandatory (but not exhaustive) considerations. Those considerations include, as the applicants note, (d), whether the public interest in exposing the matter in public outweighs the public interest in privacy. (The applicants rely on this as indicating that the legislature turned its mind to the need to balance the public interest in disclosure against the public interest in privacy, thus adverting to matters akin to the balancing exercise required in relation to a determination of public interest immunity.)

38. Section 74 applies where a witness has been summoned to attend or appear at an examination. Section 74(2) provides that:

The witness is not excused from answering any question or producing any document or other thing at an examination on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

39. There is again a form of use privilege in s 74(3).

40. Turning then to the critical part for present purposes (Pt 8), which is headed “Oversight of critical incident investigations”, the term “oversight” is defined in s 4 (as noted above). The term “critical incident” is defined in s 4 by reference to s 108 which defines it as an incident declared to be a critical incident under s 111.

41. Section 110 sets out the features of a “critical incident”, in essence it being an incident involving a police officer or other member of the Police that results in the death of or serious injury to a person (including another police officer) and where the death or serious injury occurs in any of the circumstances itemised in s 110(b)(i)-(vi) (which include where it arises from a discharge of a firearm, or the use or operation of defensive equipment, or the application of physical force by the member involved or appears to be likely to have resulted from any police operation).

42. Section 111 provides that the Commissioner of Police may (verbally or in writing) declare an incident to be a critical incident for the purposes of Pt 8 of the LECC Act if the Commissioner of Police becomes aware of an incident involving a member of the Police that exhibits the features of a critical incident or has other grounds for considering it is in the public interest to do so.

43. Section 112 provides that the Commissioner of Police must ensure that LECC is given notice of a critical incident declaration “immediately” after it is made (which illustrates the temporal significance of LECC’s role); and this notice must include enough information about the critical incident for LECC to make an initial assessment as to whether or not the investigation should be overseen by LECC or whether further information is required before a decision with respect to oversight can be made. Section 112(3) contemplates that the Commissioner of Police may decide to revoke a critical incident declaration or otherwise to cease the investigation of a critical incident; and in those circumstances the Commissioner of Police must ensure that LECC is given notice in writing of that decision and the reasons for the revocation or cessation.

44. Section 113, headed “Critical incident investigations” provides that the Commissioner of Police must ensure that the actions of members of the Police involved in a critical incident at the time of, and leading to, the critical incident are “fully and properly investigated” by the Police; and such investigation is required to involve an examination and report to each appropriate authority on any applicable of the matters there specified, including (b) the extent to which those members complied with relevant legislation and policies, practices and procedure of the Police; and (e) the need, if any, for changes to relevant policies, practices and procedures of the Police.

45. The Attorney notes that s 113(5) contemplates that there may be a concurrent investigation in relation to a critical incident, in that the Commissioner of Police may, if he or she considers it appropriate, refer to LECC a complaint about a member of the Police involved in a critical incident with a recommendation that either LECC investigate the complaint or that there be a concurrent investigation of the complaint by LECC and the Police. If there is such a referral, LECC may decide to investigate the complaint (see sub-s (6)) despite s 44(9) (which provides that, except as provided by s 113(6), LECC must postpone until the conclusion of any critical incident investigation the making of a decision about whether it should investigate a police misconduct matter if the subject of the misconduct matter is the conduct of a police officer in relation to a critical incident).

46. Section 114 provides that LECC may monitor the conduct of a critical incident investigation if it decides that it is in the public interest to do so; and must notify the Commissioner of Police as soon as practicable after it decides to monitor the conduct of a critical incident investigation.

47. Section 114(3) of the LECC Act relevantly provides that:

For the purpose of the Commission monitoring a critical incident investigation, a Commissioner or other officer of the Commission authorised in writing by a Commissioner may (subject to section 115) do all or any of the following –

(a)    attend a place where a critical incident occurred (including a place where a crime scene has been established) for the purpose of observing the exercise by police officers of any investigatory powers at or in relation to the place,

(b)    be given access without unreasonable delay to transcripts or any recordings of interviews of witnesses of a critical incident conducted by police officers for the purposes of the investigation,

(c)    with the consent of the person being interviewed and the senior critical incident investigator, be present as an observer during an interview conducted by police officers for the purposes of the investigation or view such an interview by audio visual link,

(d)    require the nominated contact for the critical incident to provide, within the period specified by the Commission, access to documents obtained or prepared by police officers for the purposes of the investigation (including any report about the conduct of the investigation and progress on it).

48. Pursuant to s 114(4) “access” to be provided may be by electronic means.

49. Section 114(5) provides that LECC may cease to monitor the conduct of an investigation of a critical incident at any time. (The applicants point to this as a counter to the submission by the Attorney that the reporting obligation in s 117 – see below – has a binary function only.)

50. Section 115(1) (a significant provision in my opinion as I explain in due course), headed “Monitoring critical incident investigations” provides that it is the duty of the Commissioner of Police and police officers involved in investigating a critical incident under s 113 and of LECC in monitoring an investigation under s 114, to “work co-operatively in the exercise of their respective functions” (i.e., investigation and monitoring, respectively) to ensure that critical incidents are “investigated in a competent, thorough and objective manner”. Section 115(3) obliges LECC to exercise its monitoring function, inter alia, (a) in accordance with any arrangements agreed between LECC and the Commissioner of Police as to the manner in which the function is to be exercised. (It is not here suggested that any such arrangements that have already been put in place are relevant to the construction of s 114(3)(d).)

51. Section 115(4) provides that LECC cannot control, supervise, direct or interfere with the carrying out by the police officers of their function of investigating a critical incident. Section 115(5), which prohibits interference with the carrying out of the functions of police officers at the place where a critical incident occurred and mandates compliance with any reasonable direction concerning the integrity of a crime scene at that place, again indicates the contemplated contemporaneity of the investigation by the Police and its monitoring by LECC.

52. Another provision of relevance in this regard is s 116 which provides that a Commissioner overseeing a critical incident investigation may at any time advise the Commissioner of Police that an investigation or an aspect of it is not being conducted in accordance with s 113(2) or not in a competent, thorough or objective manner. This, too, speaks to the temporal nature of LECC’s monitoring role. Such advice one might think would be of little or no utility once the investigation had concluded.

53. In contrast with s 116, which is permissive in terms, s 117 is mandatory in its terms. Pursuant to s 117, LECC must give the Commissioner of Police (and, if the critical incident involved a death, the coroner) advice about a critical incident investigation monitored by LECC. As adverted to above, in its terms s 117 contemplates only two types of advice:

(a)    advice confirming that it considers the investigation was fully and properly conducted, or

(b)    if it considers any aspect of the investigation was inappropriate, advice of its concerns.

54. Part 14 of the LECC Act, headed “Secrecy and confidentiality” contains restrictions on disclosure by LECC in relation to, inter alia, information provided to LECC by the Commissioner of Police or by some other police officer in accordance with a requirement of the LECC Act (defined as “police information”). Section 179 of the LECC Act relevantly provides that:

…

(2)   The Commissioner of Police may at any time notify the Commission that specified police information (referred to in this section as critical police information) is information the disclosure of which may, in the opinion of the Commissioner of Police, prejudice the investigation or prevention of crime, or otherwise be contrary to the public interest.

…

(4)   Any notice under subsection (2) or (3) must include the reasons for which the Commissioner of Police or Crime Commissioner has formed the opinion referred to in that subsection.

(5)The Commission is not to disclose critical police information or critical Crime Commission information at any time.

55. There is a 21 day period from the provision of police information (other than critical police information) within which LECC is not to disclose that information (this being to afford an opportunity for the Commissioner of Police to notify LECC that the information is critical police information – see sub-s (6) and note thereto).

56. Section 179(8) provides that nothing in s 179 prevents LECC from disclosing police information (including critical police information) to the Minister or the Commissioner of Police or to any other person to whom the Commissioner of Police authorises disclosure of the information. Section 179(9) provides that nothing in s 179 precents LECC from including police information (including critical police information) in any report submitted to the Presiding Officer of each House of Parliament or in the copy of any such report submitted to the Minister, if in LECC’s opinion the circumstances so warrant.

57. Section 180 imposes secrecy obligations on persons (including present or former officers of LECC) exercising or assisting in the exercise of the functions of LECC under the LECC Act to keep the information acquired by them as a result of those functions secret (and creates criminal offences in relation to breach of those obligations) but s 180(5) provides that, despite s 180, disclosure is permitted (subject to ss 176 and 179) in the circumstances there specified (including for the purposes of and in accordance with the legislation or of discharging LECC’s functions under the LECC Act or any other Act).

Extrinsic materials

58. The introduction and passage of the LECC Act followed a report dated 31 August 2015 by Andrew Tink AM to the NSW Government, entitled “Review of Police Oversight” (Tink Report). The Tink Report recommended a new single body civilian (external) oversight model involving the establishment of a body with the “statutory power to monitor critical incident investigations in real time” (see Tink Report p 3). There were numerous references in the report to the notion of “real time” monitoring of critical incidents (see pp 12 (at [43]), 149, 163 and 164). Some emphasis was given to the concept of “real time” monitoring (with “real time” being included in quotation marks in various places – see for example at p 163 when referring to a submission by the Ombudsman – and in the recommendation at p 164 of a specific statutory model permitting “active real time monitoring”). Recommendation 43, that the “new commission should be conferred with a ‘real time’ power to monitor these [i.e., critical] investigations” was expressed to be in order to “ensure high levels of public confidence in the standard of investigation of critical incidents by the NSW Police Force” (see at p 164).

58. The Explanatory Notes to the Bill introducing the LECC Act which set out the objects of the Bill, including that which became cl 3(h), addressed Pt 8 as follows:

Part 8 contains provisions relating to the monitoring of critical incident investigations. The Part provides for the Commissioner of Police (or his or her delegate) to declare an incident to be a critical incident if it is an incident involving a police officer or other member of the NSW Police Force that results in the death of, or serious injury to, a person (including another police officer) and the death or serious injury arises from certain specified actions (such as discharge of a firearm, application of physical force or use of equipment such as a Taser gun or capsicum spray). The Commission may monitor the progress of an investigation by police officers into the critical incident if the Commission decides that it is in the public interest for it to do so. The Part describes and limits the monitoring powers that may be exercised and ensures that the Commission cannot control, supervise, direct or interfere with the investigations. The Commission is empowered to give advice on aspects of any investigation that it considers inappropriate if an investigation is not fully and properly conducted.

60. There is no reference in the Explanatory Notes to displacement of public interest immunity (or any common law privileges) in relation to Pt 8. However, there is reference to common law privilege albeit only in relation to Division 4, within Pt 6, in relation to attendance of witnesses at an examination before the Commissioner (not in relation to Division 2, which deals with the powers to obtain information, documents and other things):

Division 4 deals with the Commissioner’s powers to require the attendance of a witness at an examination and to give evidence. Privileges that would apply in a court of law are abrogated and it is made clear that the evidence given may be used in an investigation and to obtain further evidence.

61. The second reading speech in the Legislative Assembly stated that the Bill gave effect to the recommendations in the Tink Report and that LECC’s oversight of critical incident investigations was to ensure public confidence in the investigative process, it being noted that LECC’s powers in relation to critical incident investigations would include “being able to require the senior investigator to provide access to all relevant documents and reports prepared by police in relation to the critical incident” (my emphasis) (see the extracts from the second reading speech of the Deputy Premier and Minister for Justice, Mr Grant, in the Legislative Assembly, reported in Hansard 13 September 2016, as set out at [63] and [64] of the Open Decision). That speech was expressly incorporated into the Hansard report of the second reading speech given in the Legislative Assembly on 13 September 2016 (by the Minister, Duncan Gay).

Legal principles

62. There was no dispute as to the applicable principles of statutory construction. One starts with the text of the statute considered in its context (that context including legislative history and extrinsic materials) but also having regard to the purpose and objects of the statute (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; SZTAL v Minister for Immigration and Border Protection (2016) 262 CLR 362 at 368 [14]; [2017] HCA 34). Here, the question is not as to the meaning of particular words in the legislation, it is as to whether, by necessary implication, common law public interest immunity has been abrogated or curtailed.

63. Nor was there dispute as to the nature of the common law principle of public interest immunity, which the High Court has noted reflects the public policy or interest in maintaining the confidentiality of particular evidence (either documentary or oral), not dissimilar to the operation of legal professional privilege (see Jacobsen v Rogers (1995) 182 CLR 572 at 588-590; [1995] HCA 6 (Jacobsen) per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

64. The general rule as to the operation of this principle is that the production, or disclosure, of evidence (which is otherwise relevant and admissible), will not be compelled if such production or disclosure would be injurious to the public interest (see Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 38; [1978] HCA 43 (Sankey v Whitlam) and this interest outweighs the competing public interest in disclosure. The tension arising between those different aspects of public interest was identified in Conway v Rimmer [1968] AC 910 (Conway v Rimmer) at 940 per Lord Reid (and cited by Gibbs ACJ in Sankey v Whitlam at 38) as follows:

There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.

65. In R v Lewes Justices, Ex parte Secretary of State for the Home Department [1973] AC 388 (Lewes) at 400, Lord Reid observed that such a “privilege” was not one in the “ordinary sense of the word”, and focused on the question whether the public interest (in non-disclosure) was so strong that it resisted the “ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence”.

66. The principle of public interest immunity applies not only in relation to curial proceedings but also to extra-curial proceedings (see Jacobsen at 588-590, where public interest immunity was held to be applicable in circumstances relating to the execution of search warrants). See also Middendorp Electric Co Pty Ltd v Law Institution of Victoria [1994] 2 VR 313 (Middendorp) at 323-324; Commissioner of Police (NSW) v Guo (2016) 69 AAR 74 (Guo) at [61]-[62]; Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 at [48]; and McQueen v Parole Board Queensland [2022] QSC 27 at [119]).

67. Where public interest immunity is claimed, the court must carefully scrutinise the nature of the public interest which is sought to be protected and then engage in a balancing exercise between the harm that may be suffered from the disclosure against the frustration upon the administration of justice in order to decide which aspect of the public interest dominates (see Alister v The Queen (1983) 154 CLR 404 at 412 per Gibbs CJ). Gibbs ACJ cautioned in Sankey v Whitlam, at 38, that it is not the privilege of the executive government to decide whether a document should be produced, or otherwise withheld.

68. Relevantly, in light of the applicant’s submissions as to the import of various of the provisions in the LECC Act (see below), there is authority for the proposition that public interest immunity cannot be waived (see Lord Simon of Glaisdale in Lewes at 406-407). His Lordship’s reasoning was that the Crown “has prerogatives, not privilege. The right to procure that admissible evidence be withheld from, or inadmissible evidence adduced to, the courts is not one of the prerogatives of the Crown”. Similarly, the Victorian Court of Appeal in Victoria v Seal Rocks Victoria (Australia) Pty Ltd (2001) 3 VR 1; [2001] VSCA 94 at [16] per Ormiston JA, with whom Phillips and Buchanan JJA agreed, found that such an immunity is not the subject of waiver or acquiescence, as it cannot “be resolved by decision of the government of the day”.

69. As to the position of an individual, Barker J, in RP Data Ltd v Land Information Authority (WA) (2010) 188 FCR 378; [2010] FCA 922 at [55]-[62], similarly concluded that public interest immunity could not be waived by an individual. In so doing, his Honour considered, inter alia, the English jurisprudence on this issue and adopted the reasoning of Hogg PW and Monaghan PJ, Liability of the Crown (3rd ed, Carswell, 2000) at 83, [5.2], who theorised that a Minister (in that case), who had concluded that the disclosure of information would be harmful to the public interest, was under a duty to claim public interest immunity.

70. Hence, in submissions on this appeal (see AT 23.08ff), the applicants say that, should the anterior question of the existence of public interest immunity be answered in the affirmative, it would not be open to the Attorney to rely on waiver in order to compel production of the impugned documents.

71. That said, as emphasised by counsel for the applicants, the issue for determination in the present case is whether the statute has abrogated the principle of public interest immunity, not whether such immunity attaches to any of the documents sought by the notices that have been issued by LECC (that issue remaining to be determined, if it arises, in subsequent proceedings).

72. In Guo, the Full Court of the Federal Court (Collier, Robertson and Griffiths JJ) considered whether common law public interest immunity had been excluded in proceedings before the Administrative Appeals Tribunal in respect of oral evidence and in that context held that public interest immunity was a substantive legal principle not a rule of evidence. At [62], Robertson and Griffiths JJ (with whom Collier J agreed in a separate judgment) approached the question of statutory construction in accordance with the principle of legality “that is very clear words are required to exclude such a common law doctrine”. (The applicants do not here suggest that this requires there to be express words of abrogation; rather, that the reference to “very clear words” means either express words or very clear words giving rise to necessary intendment.)

73. In Coco v The Queen (1994) 179 CLR 427 (Coco), (to which Robertson and Griffiths JJ referred in Guo at [62]), Mason CJ, Brennan, Gaudron and McHugh JJ referred to curial insistence on, and the need for, a “clear expression of an unmistakable [sic] and unambiguous intention” to displace the presumption against statutory interference with fundamental rights (see at 437-438) but made clear that such displacement could arise by implication (for example, if necessary to prevent the statutory provisions from becoming inoperative or meaningless).

74. In Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 (Lee), Kiefel J, as her Honour then was, noted (at [173]) that the applicable rule of construction recognised that legislation may be taken necessarily to intend that a fundamental right, freedom or immunity be abrogated, but said that it was not sufficient for such a conclusion that an implication “be available or somehow thought to be desirable”, emphasising that the intendment must be necessary.

75. In Lee, Gageler and Keane JJ cautioned at [313], that the principle of legality ought not to be extended beyond its rationale, which they identified as follows:

... it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

76. At [314], their Honours said that:

The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of the legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve” [citing Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 340 [43]].

77. I interpose here to note that the applicants argue that if the Attorney’s contention is correct then there has been an inadvertent and collateral alteration of public interest immunity here in circumstances where there is no manifestation of that affectation in the legislation (see AT 32.10).

78. As to the principle of legality, in Hurt v The King (2024) 98 ALJR 485; [2024] HCA 8 (Hurt), Edelman, Steward and Gleeson JJ said at [106] that it will vary with the context in which it is applied, going on to say that:

The required clarity increases the more that the rights are “fundamental” or “important” and the greater the abrogation of the rights to which the interpretation would lead. But the principle of legality is ultimately only a principle of interpretation, concerned with the intention that Parliament is taken to have. [Their Honours then go on to repeat the penultimate sentence in the above extract from Lee.]

Submissions

79. The respective parties’ submissions can be relatively briefly summarised.

Applicants’ submissions

80. The applicants place weight on the absence of clear words in words in the statute abrogating public interest immunity and say that no clear intention can be discerned to abrogate the immunity. The applicants say that there is no indication that the legislature turned its mind to the abrogation or curtailment of public interest immunity under s 114(3) and made a “legislative determination to do so”. The applicants say that abrogation or curtailment of public interest immunity was not “the very thing” which Parliament set out to achieve (cf Lee at [314]) and argue that the effect of the line of authority referred to by the Attorney (including Hurt and Lee) as to the limited application of the principle of legality is directed to where (unlike here) the legislation has among its objects the abrogation or curtailment of such immunity.

81. The applicants submit that it is inherently improbable that Parliament would intend to abrogate public interest immunity (arguing that this would amount to a contention that Parliament intended to require disclosure of a document even though the public interest in the non-disclosure of that document outweighs the purpose for which disclosure is sought).

82. Further, the applicants point to textual and contextual indications from which they draw a distinction between s 114 and the provisions in Pt 6 and which they say do not suggest that s 114(3)(d) was intended to authorise the abrogation of public interest immunity. In this regard, the applicants say that ss 56 and 74 indicate that, when it was intended to require production despite public interest immunity, Parliament said so expressly; and they note that there is no such language in s 114(3). The applicants argue that there is no explanation as to why Parliament would expressly abrogate privilege in ss 56 and 74 but do so only by way of implication in s 114(3); and they question the proposition that the recommendations of the Tink Report and comments in the second reading speech (to which reference was made in the Open Decision) relevantly point against the construction of s 114(3) for which they contend.

83. Insofar as the Attorney points to the object of “real time” monitoring of critical incident investigations (which the applicants accept points “somewhat” in favour of the construction for which the Attorney contends), the applicants say that the public interest in allowing “real time” monitoring is not a determinative consideration in assessing whether to deny the subsistence of public interest immunity. The applicants maintain that the public interest in ensuring that LECC can obtain access to relevant information is a matter to be considered during the weighing or balancing process conducted by a court (necessary for a determination of whether public interest immunity attaches to particular documents) which will or may arise if the construction issue is resolved in their favour. In this regard, the applicants say that if there is a dispute (between the Commissioner of Police and LECC) as to whether public interest immunity is attached to documents otherwise covered by the notices, that dispute can only conclusively be resolved by the Supreme Court in relation to particular documents.

84. The applicants accept that the potential for objections to be made in respect of production under s 114(3) could delay LECC obtaining access to documents which it considers to be relevant to its investigation. However, they say that this is not a determinative consideration, noting that delay could occur in other contexts (such as where there is a dispute as to what is covered by the notice) and pointing to the admonition by the High Court that “no legislation pursues its purposes at all costs” (citing CFMEU v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [40]-[41]; the applicants also here referring to New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [91]-[94]; Tjungarrayi v Western Australia (2019) 269 CLR 150 at [45]-[46]). The applicants also refer to the statement of this Court that “[i]t is not for a court to construe a statute in a way which furthers its objects to the greatest extent possible since this may not have been the legislative intention” (Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch [2024] NSWCA 24 at [1], [63], [87]).

85. The applicants argue that the proposition that Parliament intended to pursue, to its utmost extent, the purpose of ensuring that LECC could obtain all relevant information without the potential for delay by reason of objections to production can be tested by reference to its logical conclusion (namely, that, on that hypothesis, s 114(3)(d) would abrogate numerous other common law privileges, such as legal professional privilege, Cabinet-in-confidence or Parliamentary privilege, and would preclude objection to production of documents subject to a judicially-ordered suppression order or on the basis of whether the documents fell within the terms of the notice). Further, they say that on that hypothesis one would construe s 114(3)(d) as manifesting an invalid intention that there should be an ouster of any jurisdiction of the Supreme Court to conclude that documents fall outside the permissible scope of the notice, because access to judicial review would have the potential to delay production.

86. The applicants appear to accept that Parliament may have intended the power in s 114(3)(d) to be generally beneficial and to facilitate the prompt fulfilment of LECC’s functions but they say that it does not follow that Parliament intended the power in s 114(3)(d) to be unlimited or to be so broad that there was no realistic prospect of objection being taken to production, with that objection then being determined judicially. The applicants argue that it is more likely that Parliament intended to pursue the purpose of ensuring real time oversight powers “only to an extent, and not to such an extent as to override fundamental common law principles”, emphasising that nothing in the Tink Report (or the second reading speeches) indicates that Parliament turned its mind to the abrogation of public interest immunity and intended that s 114(3)(d) abrogate that immunity (see AT 12.4-14).

87. As to the suggestion that the statutory power to be exercised in real time would be stultified if public interest immunity were not to be abrogated, the applicants point to Jacobsen (at 589), where the Court considered that practical difficulties in giving effect to the immunity in the context of the execution of a search warrant were an inadequate reason for holding the doctrine to be inapplicable.

80. Further, the applicants argue that practical difficulties in vindicating limitations on the scope of the power given by s 114(3)(d) are not insurmountable; that objection to access can be taken before LECC and the parties can facilitate a prompt hearing before LECC (and then, if the objection is not upheld and not withdrawn, a prompt hearing can be sought in the Supreme Court), likening this to the process by which issues that arise in the course of executing search warrants can be resolved.

81. Thus, the applicants submit that Parliament should not be taken to have pursued the objective of the prompt obtaining of information by LECC at all costs “including at the cost of requiring the disclosure of documents to LECC even where the public interest in not disclosing them outweighed the public interest in disclosing them”.

82. As to the argument that the intention for LECC to have available to it all documents necessary to discharge its monitoring function means that Parliament must have must have intended to abrogate public interest immunity (as reasoned in the Open Decision at [83], [90]), the applicants again argue that Parliament should not be taken to have pursued its purposes at all costs; and they submit, further, that this is not supported by the text of s 114(3)(d), which is not a power to compel the provision of access to “all information provision of access to which is necessary for the fulfilment of LECC’s monitoring functions” but, rather, a power to compel the provision of access to all “documents obtained or prepared by police officers for the purposes of the investigation”.

83. The applicants accept that s 114(3)(d) helps achieve the purpose of ensuring that LECC has available to it those documents which are necessary for the exercise of its functions but they say that its operation is broader than that purpose (extending to documents obtained by police officers for the purpose of the investigation whether or not they were used or used more than trivially for the purposes of the investigation and extending to the whole of the documents even if only part is perceived to be relevant). The applicants argue that the extent to which disclosure to LECC of a particular document is necessary or important for the discharge of LECC’s functions is a matter to be given weight at the balancing stage (in determining whether public interest immunity attaches to the document).

84. Finally, the applicants argue that the existence of s 179 is not a sufficient reason to discern a parliamentary intention to abrogate public interest immunity in the context of s 114 (cf Open Decision at [94]-[101]), pointing to the fact that there are limitations on the restrictions imposed by that section on disclosure by LECC of critical police information (including that the information can be disclosed to Parliament or the Minister if LECC is satisfied that the circumstances so warrant) (neither of which is subject to restrictions on disclosure under s 179); and arguing that s 179 does nothing to preserve the secrecy of the information in the hands of a person other than LECC.

85. The applicants say that s 179 does not manifest an intention to abrogate public interest immunity; rather, that it is a mechanism for ensuring that a degree of confidentiality attaches to information disclosed to LECC pursuant to a requirement under the LECC Act. The applicants accept that this is a matter which would weigh (potentially heavily) in the assessment of whether public interest immunity attaches to particular documents but maintain that it is a matter that arises at the balancing stage. In that regard, the applicants point to the reasoning in Middendorp where the Court held that “the existence of secrecy or confidentiality provisions in an Act which establishes a non-curial authority may be relevant to the balancing exercise, they do not extinguish the existence of public interest immunity” (at 324-5).

Attorney’s submissions

94. As to the submission by the applicants that it is inherently improbable that Parliament intended to abrogate public interest immunity, the Attorney points to the particular relationship created under the LECC Act between the LECC and the NSW Police Force in connection with critical incident investigations, in which context the Attorney argues that an intention to abrogate public interest immunity is not improbable.

95. As adverted to by the applicants in their submissions, the Attorney emphasises the statutory objective of “real time” monitoring of critical incident investigations (see s 3(h) of the LECC Act), submitting that the text and context of the legislation make clear that a central purpose of Pt 8 of the LECC Act is to promote public confidence in police investigation of critical incidents. The Attorney notes that a decision by LECC to monitor the conduct of a critical incident investigation means that there has already been an assessment by LECC that the involvement of the LECC is in the public interest; and that the importance of “real time monitoring” in connection with critical incident investigations is highlighted by contrasting the language of s 3(h) with that of s 3(c) concerning misconduct matters (where real time monitoring is only “where appropriate”).

96. The Attorney submits that it is clear that “real time monitoring” was intended to occur simultaneously with the critical incident investigation in a time-sensitive manner and says that, if that were not the case, there would be little opportunity for, or utility in, the giving of advice in the course of a critical incident investigation that is contemplated may occur pursuant to s 116.

97. Further, the Attorney notes that LECC (which is precluded from itself investigating a critical incident unless the Commissioner of Police considers it appropriate) will be reliant, in the discharge of its oversight function, on information provided to it by the Police. The Attorney places reliance on the advice function provided by s 117(1), noting that it does not contemplate that LECC will decline to give advice on the basis of a lack of information. The Attorney says that LECC cannot sensibly give advice confirming that the investigation was fully and properly conducted if LECC knows that documents available to the investigating officers were withheld from it; and argues that the way in which s 117(1) is drafted is a significant textual indicator that Parliament intended LECC to have access to all the documents prepared or obtained by the officers investigating the critical incident (and that, by necessary implication, Parliament intended to exclude public interest immunity).

98. The Attorney also submits that, insofar as the legislation contemplates that there may be a concurrent investigation (by the Police and LECC), a real coherence difficulty arises if the operation of the Act is that LECC’s powers exclude public interest immunity in respect of one part of the parallel function, (that is, its investigation) but not its oversight monitoring function. The Attorney submits that this would create at least the spectre of the perception of a perverse incentive on the Commissioner of Police to avoid referring a matter for concurrent investigation if that referral might adversely affect the Commissioner of Police’s position on public interest immunity (see AT 38). The Attorney emphasises in this context that the objects of the LECC Act include maintaining public confidence in police critical incident investigations; and the Attorney argues that the disjunct between the operation of public interest immunity as between investigation and oversight creates a level of incoherence that is contrary to the public interest in the maintenance of public confidence.

99. The Attorney says that the power in s 114(3)(d) to require access to “documents obtained or prepared by police officers for the purposes of the investigation” is narrowly framed (cf the applicants’ submission that this is a broad provision), in that it applies to documents that must be obtained or prepared for the purpose of the investigation and it may be expected that the Commissioner of Police and LECC will work cooperatively to determine what is relevant for the purpose of LECC’s oversight (see AT 39). In other words, the Attorney says that the power applies to documents with a nexus to LECC’s function of monitoring and giving advice on critical incident investigations.

100. The Attorney submits that if public interest immunity is preserved as a valid objection to production under s 114(3)(d), LECC may be prevented from accessing documents regarding police methodologies and activities, which documents are necessary to the proper discharge of the functions conferred on LECC by Pt 8 of the LECC Act (which include full and proper investigation of police methodologies and activities in connection with critical incident investigations).

101. By way of example, the Attorney says that, without reference to the relevant procedure manuals of the Police and to the contemporaneous records of the critical incidents (the iSURV logs), LECC could not sensibly or reasonably form a view as to whether the critical incident investigation has, consistent with s 113(2), fully and properly considered whether the policies, practices and procedures of the NSW Police Force were complied with (sub-s (b)); whether any changes to those policies, practices and procedures are needed (sub-s (e)); and whether the actions of the members of the NSW Police Force involved in the critical incident were lawful and reasonable (sub-s (a)). The Attorney says that (contrary to the applicants’ argument) documents that were obtained but not used, or only partially used, for the purpose of the investigation are relevant to these kinds of assessment because LECC must satisfy itself that relevant matters have not been overlooked.

102. The Attorney accepts that the recommendations in the Tink Report and the observations in the second reading speeches cannot be substituted for the text of the legislation. However, the Attorney submits that regard to that extrinsic material confirms a purpose that can be discerned in the text of the LECC Act, especially in s 3(h), the definition of “oversight” in s 4(1) and ss 116-117.

103. The Attorney contends that the ends the legislature intended to achieve are clearly set out in s 117(1), namely that LECC would be in a position to, and would, form and express one of the two views specified in s 117(1): either (a) that the “investigation was fully and properly conducted”, or (b) if an “aspect of the investigation was inappropriate”, LECC’s concerns. The Attorney further submits that the “preservation of public interest immunity in circumstances where its preservation will thwart the proper discharge of statutory functions is more than a “practical difficulty””; and that where the statutory functions conferred on it require the abrogation of public interest immunity in order that the functions may be properly discharged this necessarily implies that the abrogation was intended and has occurred. The Attorney says that a consequence where the Commissioner of Police would be left to determine what documents the LECC may access in real time for the purposes of its real time monitoring would be contrary to the statutory scheme and purpose.

104. Hence, the Attorney submits that s 114(3)(d), in its statutory context, evinces a decision by the legislature that it will not be contrary to the public interest for the class of documents to which that provision applies to be provided to LECC for the purpose of LECC monitoring a critical incident investigation. The Attorney says that this conclusion is reinforced by reference to other provisions of the LECC Act concerning secrecy and confidentiality (referring to ss 179 and 180) and the specific functions and constitution of LECC.

105. The Attorney points out that whenever documents are produced to LECC pursuant to a requirement under s 114(3)(d), it is open to the Commissioner of Police to seek to protect the information in the documents from disclosure by invoking s 179 (i.e., to notify that this is critical police information). The Attorney submits that whether the disclosure of the critical police information would “be contrary to the public interest” for the purposes of s 179(2) is the same consideration as would inform the making of a public interest immunity claim.

106. The Attorney submits that ss 179 and 180 of the LECC Act are consistent with and facilitate a legislative design by which LECC obtains access under s 114(3)(d) to information that would, in another forum, be subject to public interest immunity. The Attorney says that it cannot be doubted that LECC is constituted as a body that is entrusted to receive sensitive and confidential information, the disclosure of which more widely would be contrary to the public interest, noting that LECC is expressly authorised by s 56(3) to receive information that would, in another forum, be subject to public interest immunity.

107. Insofar as the applicants rely on s 56(3) and s 74(2) in Pt 6 of the LECC Act as indications that, where Parliament intended to abrogate public interest immunity, it did so expressly, the Attorney maintains that there are significant differences between Pt 6 and Pt 8 of the LECC Act. In particular, the Attorney notes that (by contrast to Pt 6), Pt 8 establishes a cooperative relationship between LECC and the Commissioner of Police in respect of critical incident investigations (referring to s 115(2)). The Attorney argues that in this particular context, the principle of legality applies with less force and the abrogation of public interest immunity by necessary implication is explicable.

108. The Attorney submits that it is necessarily implied from the provisions of Pt 8 and the nature of the specific function conferred on LECC in relation to critical incident investigations, that the legislature intended to exclude public interest immunity claims by the Commissioner of Police, and hence the existence of an express abrogation of public interest immunity elsewhere in the LECC Act is of no significance. It is submitted that the same abrogation may not have been clear in those other contexts.

109. The Attorney says that it is patent from ss 56(3), 74(2) and 179-180 that LECC is a body equipped by Parliament to receive information (including information that may be highly sensitive), in a secure and confidential context, for the purpose of discharging its statutory functions; and submits that it is not surprising or improbable that Parliament should have proceeded on the basis that the public interest is served by LECC having access to all documents available to the Police investigators in a critical incident investigation.

Applicants’ submissions in reply

110. In reply submissions, the applicants accept that there is a salutary purpose in LECC receiving documents obtained or prepared by officers for the purpose of an investigation but they contend that Parliament did not intend to require that LECC be provided with access where the public interest in not providing access outweighed the public interest in providing access. Hence they maintain the real issue here is not whether it is prima facie desirable for LECC to have access to such documents; it is whether Parliament intended LECC to have access to such documents (in their entirety) even where it was contrary to the public interest, as assessed by a Court.

111. The applicants test the Attorney’s position in this regard by postulating a number of scenarios in which they argue that, on the Attorney’s construction, there would be an obligation to provide access: first, where, in the course of an investigation, police obtained a list of confidential informants used by the police, only one of which was conceivably relevant to the investigation; second, where, in the course of an investigation where there was no telecommunications interception, police obtained a text setting out general police methodologies, including methodologies regarding telecommunications interceptions; third, where in the second scenario, the relevant methodology had been provided to NSW police confidentially by the AFP or, alternatively, by a foreign State on the condition that the methodology remain secret; fourth, where in either of the first two scenarios police had obtained two partially-duplicative copies of the relevant list (of informants) or text (setting out general methodology) one of which was much more confined being the one that was actually used by police in the investigation; and fifth, where the underlying police investigation concerned the conduct of a person who was now employed by LECC.

112. The applicants say that the Attorney’s position must be assessed by reference to the case where the public interest in not providing access outweighs the public interest in providing access (for example, by reference to the case where a document is of no relevance or limited relevance to LECC’s monitoring function and disclosure of the document to LECC would be highly prejudicial to an aspect of the public interest). The applicants submit that it is inherently improbable that Parliament would intend to compel provision of access in cases where the public interest was against, even overwhelmingly against, access.

113. As to the Attorney’s submissions in respect of the import of “real time” monitoring of critical incident investigations, the applicants accept that there is a public interest in monitoring critical incident investigations; but they say that this is an interest which forms part of the balancing process. The applicants also accept that “real time” monitoring is an object of the LECC Act and that the availability of public interest immunity as an objection to production could practically delay LECC from obtaining access to a document; but they do not accept the proposition that this means that Parliament must have intended to abrogate public interest immunity.

114. The applicants further accept that performance of the function of monitoring investigations will often depend on police providing LECC with documents but they say that the extent to which this is the case depends on the circumstances of the particular case, including the issues arising in the course of the monitoring, the nature of the investigation being monitored and the availability and significance of other sources of information. The applicants do not accept that LECC’s monitoring function will be subverted or stultified if s 114(3)(d) does not abrogate public interest immunity. Rather, the applicants say that the adverse effect (if any) of non-disclosure on the monitoring function will be a relevant, often decisive, factor in the balancing process when determining whether public interest immunity attaches to the relevant documents.

115. The applicants do not accept that the potential for public interest immunity to impede LECC’s functions is a sufficient reason to displace public interest immunity. They argue that issues of public interest immunity inevitably involve a tension between competing public interests (and the fact that there is a public interest in receiving a document necessary or conducive to the relevant body’s function does not lead to the conclusion that there was an intention to abrogate public interest immunity). In this context, the applicants call in aid observations made in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 60-61, 75-77, applied in Gypsy JokersMotorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 per Gleeson CJ at [22]-[24]; and they argue that public interest immunity operates even though “the proper administration of justice … requires that evidence necessary if justice is to be done should be freely available to those who litigate” (citing Sankey v Whitlam at 49).

116. As to the Attorney’s submission based on the obligation of LECC to provide advice, the applicants say that if Parliament’s intention was that LECC receive all documents obtained or used by police in an investigation, it could have imposed a proactive duty on police to disclose all such documents to LECC and expressly abrogated all privileges and immunities; but it did not do so. Further, they say that if in a particular case, receipt of access to a particular document was necessary for LECC to form an opinion under s 117(1), that would be a powerful consideration in the balance when assessing a public interest immunity claim. In any event, the applicants argue that, however s 114(3)(d) is construed, there is an inevitable possibility that LECC will not be in a position to make a finding under s 117(1)(a) or (b) (postulating circumstances in which the documents may not reveal whether or not an investigation was properly conducted or the formation of an opinion under s 117(1)(a) or (b) may depend on oral testimony which is not compellable or not obtainable or on the drawing of inferences, in circumstances where the available evidence does not favour one inference over another).

110. The applicants say that Parliament must have contemplated that monitoring under Pt 8 could conclude without advice of the kind referred to in s 117(1)(a) or (b) being given; and they argue that at least one statutory mechanism for achieving that outcome is s 114(5) which permits LECC to cease monitoring at any time. The applicants say that one circumstance in which LECC might choose to cease monitoring is where the available information does not allow a conclusion to be reached either way under s 117(1)(a) or (b).

111. The applicants also argue (further, or alternatively) that s 117(1) can be read as providing a bifurcated mechanism, whereby unless LECC is positively satisfied that an aspect of the investigation was inappropriate (for the purposes of s 117(1)(b)), it must provide advice that the investigation was fully and properly conducted (for the purposes of s 117(1)(a)). The applicants argue that, on that approach, if LECC perceives a deficiency in the information available to it, that would not prevent LECC from providing advice under s 117(1); and that LECC could provide reasons supporting its advice which noted the limitations in the evidence available to it.

112. As to the Attorney’s submission that documents setting out police methodologies are necessary to the proper discharge of LECC’s functions, the applicants accept that receiving access to documents setting out police methodology “may very well be conducive” to LECC’s monitoring function in a particular case but that the significance of the document (and its contents) to LECC will vary with the circumstances of the case (and form an important part of the balancing exercise). The applicants submit that it is difficult to see why Parliament would intend to oblige production of the entirety of a document setting out highly sensitive, general police methodologies, including police methodologies which have nothing to do with the police investigation at hand.

113. As to the Attorney’s submission that documents that are only partially used or relevant may still be relevant, the applicants say that the significance of information which was before police, but not used, is again a matter relevant to the balancing exercise. The applicants argue that the Attorney’s position must accommodate the case where information in a document is wholly irrelevant or of very low relevance to LECC’s functions.

114. As to the Attorney’s argument that the non-abrogation of the immunity would mean that the police would be left to determine what documents LECC may access in real time, the applicants say that police do not have power to determine the existence of public interest immunity; rather, that power resides with the Court. The applicants say that LECC can ensure that police act promptly to have the Court determine public interest immunity claims by stipulating a time for production under s 114(3)(d); and that Courts are well capable of resolving claims efficiently and expeditiously. The applicants point out that the risk of non-production lies with the person to whom the notice is issued, including because of potential liability under s 148.

115. As to the Attorney’s argument based on s 114(3)(d), the applicants say that this section does not manifest an intention to identify documents of the kind referred to in s 114(3)(d) as having a kind of “class liability”, such that there is a deemed overwhelming public interest in their disclosure, noting that s 114(3)(d) makes no reference to the “public interest” (cf other provisions of the LECC Act – see ss 145(1), (2); 179(2), (3), 180(5)). The applicants say that, at most, s 114(3)(d) indicates that there is a public interest in LECC obtaining documents of the identified kind.

116. Finally, as to the submission that, if there had been no express displacement by ss 56 and 74, it might have “meant that public interest immunity was, by implication, preserved”, the applicants say that this misunderstands the interaction between public interest immunity and statute (that it is not necessary for legislation to “preserve” fundamental substantive common law rules; rather, there is a presupposition that common law freedoms and immunities exists and the question is whether this is displaced by statute). The applicants submit that if s 56(3) had not been enacted, then public interest immunity would have qualified LECC’s power to compel production under ss 54 and 55 because ss 54 and 55 did not, expressly or by necessary implication, displace public interest immunity and because that immunity was otherwise confirmed by s 56(2); and that if s 74(2) had not been enacted, public interest immunity would have qualified any obligation to answer questions or produce documents assumed by s 74(1) because s 74 (and Pt 6) did not, expressly or by necessary implication, displace public interest immunity. The applicants agree that, but for s 56(2) and s 74(2), displacement of public interest immunity would not have been clear in Pt 6 but they say that the same goes for Pt 8, save that in Pt 8 there is no equivalent of s 56(2) and s 74(2) which expressly displace public interest immunity.

Determination

124. I note that during the course of argument at the hearing there was discussion as to whether it might be concluded that there was a partial curtailment of public interest immunity, such that it was abrogated only as between the Commissioner of Police and LECC, with the consequence that LECC could obtain materials to which public interest immunity attached (or might potentially attach) but would not be able to disclose those materials (say by reference to those materials in a report to Parliament or the Minister) without the consent of the Commissioner of Police. Neither party accepted such a proposition (AT 32.35, 35.18ff, 40). The position of LECC is that public interest immunity has been abrogated in general and that LECC would be entitled to report (over any objection by the Commissioner for Police) by reason of s 179(9) of the LECC Act (AT 39-40). Further, counsel for the Attorney says that there is an absence of a textual indication as to where the line would be drawn for such a curtailment of public interest immunity (i.e., if it remained applicable in relation to on-disclosure) (AT 43.49).

125. For the following reasons, I consider that on the proper construction of s 114(3)(d), read in the context of the legislation as a whole and having regard to the objects and purpose of the legislation, public interest immunity has been abrogated by necessary intendment in relation to the production of material to LECC under notices issued under that section for the purpose of oversight and monitoring of a critical incident investigation.

126. First, I place weight on the stated legislative objective that there be “independent oversight and real time monitoring” by LECC of critical incident investigations by the Police. While not defined, “real time” monitoring must indicate at least relative contemporaneity with the investigation (i.e., this is not monitoring after the investigation has concluded). This is reinforced by the fact that s 116 contemplates that advice may be given at any time during the course of the critical incident investigation (and the temporal indications to which I have earlier referred).

127. Second, I attach significance to the obligation imposed by s 117 on LECC to provide advice as to whether it considers the investigation was fully and properly conducted or, if it considers any aspect of the investigation was inappropriate, advice as to its concerns. That advice may be given before the conclusion of the critical incident investigation.

128. Those two matters provide a clear indication that what the legislature contemplated was that LECC would be overseeing and monitoring the critical incident investigation as it was occurring (i.e., in “real time”) and would be provided with all relevant materials to enable it to form the necessary view as to the conduct of the investigation so as to give the advice contemplated by s 117. (To some extent this seems to be implicitly acknowledged by the applicants’ acceptance – see at AT 15 – that if the question in the present case is whether police have complied with the “Less Lethal Manual” (in the second of the two critical incidents) then this would be a weighty consideration in the balancing exercise that might in due course be necessary; though the applicants say that this would not necessarily mean that production of the entirety of the manual would be required.)

129. The suggestion by the applicants that the advice obligation could be met in effect by stating that LECC was unable to reach a conclusion because it had incomplete materials is not consistent with the text of s 117; nor is it consistent in my opinion with the maintenance of public confidence in police critical incident investigations. Nor is the suggestion that LECC could simply decide to cease to monitor the critical incident investigation pursuant to s 114(5) because it had insufficient information consistent with the statutory objectives set out in s 3 and the obligation in s 115 of co-operation between the Police and LECC.

130. Third, the obligation of co-operation in relation to the investigation (by the Police) and monitoring (by LECC) of critical incident investigations to my mind provides a strong indication that Parliament intended that LECC and the Police effectively work together (in the same “tent” or “camp”, so to speak) in the exercise of their respective functions, which makes it not at all improbable that the legislature intended that public interest immunity be abrogated in relation to production of “all relevant documents” (to use the words in the second reading speech) to LECC under s 114(3)(d). “Relevant” in this context, is not necessarily limited to documents used in the course of a critical incident investigation. As the Attorney submits, documents obtained or prepared for or in the course of a critical incident investigation may be relevant in monitoring (for example) compliance with policies, practices or procedures in relation to critical incidents or suggesting changes thereto.

131. The applicants suggest that the duty to co-operate under s 115 would include not taking spurious objections, not seeking unreasonably to delay the production of documents; but they say it would not impose an independent duty on police to disclose all documents (see AT 15). However, that does not grapple with the issue that the duty to co-operate could reasonably extend to attempting to reach agreement as to limits on the scope or manner of production or access to requested documents (say, for example, where documents might be redacted in an agreed fashion) as counsel for the applicants appears to accept could have been done in the present case (AT 15).

132. The fact that Pt 6 expressly adverts to the abrogation of privileges does not in my opinion lead to the conclusion that Pt 8 cannot necessarily by implication have done so in relation to public interest immunity (even leaving aside the technical argument that public interest immunity has been said to be a principle or doctrine not a privilege). That is because Pt 6 is focusing on privileges that might be invoked by an individual required to produce documents or to attend for examination for the purposes of an investigation in relation to possible or potential serious misconduct or maladministration whereas Pt 8 is focusing on the oversight by LECC of critical incident investigations. The applicants accept that those Parts address different circumstances (see AT 13). And, as observed above, there is an obligation on the Police and LECC to work co-operatively in that regard (in other words, the production contemplated by s 114(3)(d) is in effect to another entity within the same “tent” or “camp”), which is not the case in relation to persons required to produce documents or attend for examination under Pt 6.

133. Ultimately, the requirement for “real time” monitoring of a critical incident investigation and the need for LECC to provide advice as to whether there has been full and proper investigation in compliance with relevant policies and practices mean that LECC must be in a position, in order to perform its functions, to have access to all relevant documents for the purposes of the relevant critical incident investigation. In those circumstances, the clear objects and purposes of the legislation would be stultified if the Commissioner of Police were able to resist production on the basis of public interest immunity. This is not a case where perceived “practical difficulties” caused by non-production drive my conclusion as to abrogation of the immunity (cf the observation in Jacobsen that practical difficulty is an inadequate reason for implication of abrogation of the immunity). Rather, it makes a nonsense of the requirement to monitor in real time a critical incident investigation and advise, amongst other things, on the fullness and proper carrying out of the investigation if the oversight body is not provided with access to (or entitled to call for production of) all the material obtained or prepared in or for the purposes of the investigation.

134. Parliament’s intention was clearly (as indicated in the second reading speech) that LECC have all relevant documents for the purposes of its monitoring and advice functions. Thus its intention must necessarily have been to abrogate public interest immunity in such documents. The fact that there was no express reference to the immunity in the extrinsic materials or in Pt 8 itself does not change that conclusion. Nor does the fact that “public interest” is referred to in other contexts in the legislation (for example, in relation to the decision of LECC whether to monitor a critical incident investigation; and see s 179(2) and (3)).

135. It is neither necessary nor appropriate to consider what implications that conclusion may have for other common law privileges or immunities that are not here raised for determination. Nor is it necessary to consider the various hypothetical situations that the applicants have postulated (which would in my view be well capable of resolution through the reasonable co-operation process).

136. The conclusion that the immunity has been abrogated by necessary intendment is highlighted by reference to the objections that have been raised by the NSW Commissioner of Police in relation to the documents here sought (although I accept that the proper construction of the statute does not depend on whether particular documents could here be the subject of a valid public interest immunity claim). The NSW Commissioner of Police resists providing iSURV logs or records which provide a contemporaneous account of the critical incidents the subject of investigation. Without those records, it is difficult to see how LECC could fully and properly monitor the critical incident investigation. Similarly, without the “Less Lethal Manual” (or at least the relevant parts of that manual) it would seem to be impossible for LECC to form a view as to whether there had been compliance with police policies or manuals (or whether there needed to be change thereto).

137. The fact that there is reference in the offence provisions (see s 148) to a person who “without reasonable excuse” does or fails to do something required (say to produce documents or attend for examination) also does not warrant the conclusion that the immunity has not been abrogated. Reliance was placed by the applicants on Sorby v The Commonwealth (1983) 152 CLR 281, where the High Court had regard to the existence of a reasonable excuse provision as a matter pointing against the abrogation of the privilege against self-incrimination (see the discussion by Mason, Wilson and Dawson JJ at 310-311). That is because s 148 would apply equally to production under Pt 6 (where privileges have been expressly abrogated) and under Pt 8.

138. As to the significance of ss 179 and 180 (on which the Chief Commissioner also relied for the conclusion that common law public interest immunity principles have no role to play with respect to police information), it is by no means the case that “critical police information” equates to information which would be the subject of a valid public interest immunity claim although it may be expected that there would be some overlap. I do not see these sections as informing the question whether public interest immunity has been abrogated by necessary intendment. Rather, I see these sections as indicating where the requirement for the Police and LECC to work co-operatively will have important operation.

139. As explained earlier, s 179 sets up a regime whereby the Commissioner of Police can notify LECC of “critical police information” the disclosure of which may in his or her opinion prejudice the investigation or prevention of crime or otherwise be contrary to public interest. True it is that, if there is such notification, the limitation on disclosure by LECC does not extend to disclosure to Parliament or the Minister. However, read in conjunction with the obligation under s 115 of co-operation between the Police and LECC, one would expect that LECC would be astute to avoid disclosure of critical police information to the Parliament or Minister if at all possible.

140. That raises the concern expressed during the course of the hearing as to the course that this matter has taken to reach this Court. I would have expected that the Police and LECC could have worked co-operatively to reach a resolution of the concerns raised by the Police (without any suggestion of this amounting to a “waiver” of public interest immunity as such – noting the authorities referred to above that indicate that the immunity cannot be waived).

141. For example, insofar as the concern of the Police is that disclosure of the “Less Lethal Manual” would involve disclosure of material irrelevant to the critical incident investigation in question or of foreign State information in respect of which there are confidentiality obligations, I would have thought that a reasonably co-operative stance might be for the Police to request that the notice be amended only to refer to relevant parts of the manual and/or to permit the redaction of material subject to confidentiality obligations to foreign States; or to provide a general account of what is contained in that part of the manual to which real objection to production is taken so that LECC can reach an informed view as to whether it is necessary to see that part of the material. A similar course could have been taken in relation to material in the iSURV logs that is said to disclose police methodologies.

142. As to the concern that police operatives’ names would be disclosed, it would surely have been open to the Police and LECC to confer as to whether some form of redaction or use of pseudonyms would address the Police’s concerns but without inhibiting LECC’s monitoring of the critical incident investigation.

143. Indeed, it is difficult to resist the conclusion that both sides have adopted a blanket position – on the one hand, the position of LECC is that public interest immunity has been abrogated and everything must be produced (and may where appropriate be disclosed even over objection by the Commissioner of Police) and, on the other hand, the position of the applicants is that public interest immunity has not been abrogated and that, if the objection is maintained, then it must be determined by LECC and potentially ultimately by the Court in the balancing exercise to which the applicants have referred more than once in their submissions.

144. I do not suggest that the concerns raised by the Police are not genuine. Nor do I suggest that LECC’s position as to abrogation of the immunity (and the refusal of the Chief Commissioner to provide a personal undertaking as to non-disclosure in advance of production of the documents – see AT 9) is unreasonable. However, I remain concerned that the parties should work co-operatively to address their respective concerns (as in my view is contemplated by s 115).

124. Similarly, as to the prospect of the ultimate disclosure of “critical police information” in a report to Parliament or the Minister (which the Attorney maintains LECC is permitted to do), I would have hoped that by way of reasonable co-operation between the Police and LECC an accommodation could be reached as to how any such disclosure could be suitably anonymised or worded (or material redacted) so as not to give rise to the Police’s legitimate concerns without precluding LECC from performing its reporting functions. I do not consider that the broad personal undertaking sought from the Chief Commissioner is an appropriate way to deal with those issues.

125. For those reasons, I am of the view that the declaration sought by the applicants (in either of its alternative forms) should not be made and I would dismiss the summons with no order as to costs.

126. GLEESON JA: I agree with Ward P. I add one brief comment in relation to her Honour’s reasons at [124]. As indicated, neither party favoured a construction of the Law Enforcement Conduct Commission Act 2016 (NSW) (the Act) that by necessary intendment the common law privilege from production on the ground of public interest immunity was curtailed, rather than abrogated, with respect to a requirement by the Law Enforcement Conduct Commission (LECC) under s 114(3)(d) of the Act to provide access to documents obtained or prepared by police officers for the purposes of the investigation of a “critical incident”, as referred to in s 111 of the Act.

127. Section 179 of the Act places constraints on LECC disclosing “critical police information” received from police under a requirement in s 114(3)(d); the terms of those provisions are referred to at [47], and [54]-[56] of her Honour’s judgment. At the hearing, I was troubled by the possible significance of the regime in s 179 for whether the Act is to be read by necessary intendment as abrogating rather than merely curtailing the common law privilege of public interest immunity. On reflection, the better view is, as Ward P concludes, that public interest immunity is abrogated by necessary intendment, rather than merely curtailed, in relation to material required by LECC from the police under s 114(3)(d) of the Act. That is because the regime in s 179 constraining, relevantly, the disclosure by LECC of material provided by police to LECC in accordance with a requirement under s 114(3)(d) is not concerned with the disclosure of material which might otherwise have been the subject of a valid claim of privilege from production on the ground of public interest immunity.

128. Rather, the subject matter of s 179 concerns specified information answering the description of “critical police information” in s 179(2) the disclosure of which may, in the opinion of the Commissioner of Police, prejudice the investigation or prevention of crime, or otherwise be contrary to the public interest. By definition, the content of “critical police information” depends on the Commissioner of Police forming the requisite opinion with respect to either prejudicial matters or the public interest (s 179(2)), rather than the objective fact as to the public interest, which in the event of a dispute with respect to a claim of public interest immunity would be determined by a court. Thus, the restriction on disclosure by LECC of “critical police information” is distinct from any common law privilege from production on the ground of public interest immunity, although in practical terms there might be some overlap between material falling into those two categories.

129. This distinction in s 179 of the Act reflects a legislative choice that LECC is constrained from disclosing “critical police information” which it obtains from the police under the Act, including under s 114(3)(d), except for limited purposes, relevantly, (i) exercising its investigative powers under Pt 6 of the Act (s 179(6)), (ii) to the Minister or the Commissioner of Police or to any other person to whom the Commissioner of Police authorises disclosure of information (s 179(8)(a)) or (iii) if, in the Commissioner’s opinion, the circumstances so warrant, in any report submitted to the presiding officer of each house of Parliament or in a copy of any such report submitted to the Minister (s 179(9)).

130. The combined effect of the exceptions in ss 179(6), (8) and (9) to the constraint on disclosure by LECC of “critical police information” is that the regime established by s 179 of the Act deals with a different subject matter than public interest immunity. There is no reason to conclude that s 179 supports a construction of the Act that by necessary intendment as between the police and LECC (only) the privilege from production of material under s 114(3)(d) on the ground of public interest immunity is curtailed, but otherwise preserve claims of public interest immunity with respect to material in the hands of LECC as a result of a requirement under s 114(3)(d) of the Act. Section 179 is consistent with the view, for the reasons given by Ward P, that the Act by necessary intendment has abrogated the privilege from production on the ground of public interest immunity in answer to a requirement by LECC under s 114(3)(d).

131. ADAMSON JA: I have had the benefit of reading the judgments of Ward P and Gleeson JA and substantially agree with their reasons. My reasons for agreeing with the orders proposed by Ward P are as follows.

132. The Law Enforcement Conduct Commission Act 2016 (NSW) must be read as a whole. All legislative references in these reasons are references to this Act, except as otherwise stated.

133. There is a clear distinction between Pt 6, which confers investigative powers on the Law Enforcement Conduct Commission (the Commission), and Pt 8, which confers power on the Commission to oversee “critical incident investigations” conducted by the NSW Police (the police). The text and context of Pt 8 indicate that its purpose is to engender and promote public confidence in the investigation of critical incidents by the police by providing for independent oversight and monitoring.

134. Section 114 relevantly provides that the Commission “may monitor the conduct of a critical incident investigation if [it] decides that it is in the public interest to do so”. “Oversight” of an agency by the Commission is defined by s 4(1) to mean holding the relevant agency, in this case, the police, to account through scrutiny, review and monitoring. The oversight is to be “independent” and the monitoring may be “real time”: s 3(h). Thus, Parliament expressly contemplated that the Commission would monitor a critical incident investigation while it is being carried out.

135. Monitoring (which is the Commission’s role) and investigating (which is the police’s role) are distinct concepts. While the Commission may investigate a critical incident which is being investigated by the police, it can do so only if the Commissioner of Police considers it to be appropriate: ss 44(9); 113(5)-(6) and 115(4). In other cases, the Commission’s role under Pt 8 is to monitor the investigation by the police. The Commission and the police are “to work co-operatively in the exercise of their respective functions to ensure the critical incident is investigated in a competent, thorough and objective manner”: s 115(1).

136. Inevitably and necessarily, the Commission can perform its oversight and monitoring functions only if it has access to information provided by the police, for which s 114 provides. The power to obtain documents in s 114(3)(d) is expressly concerned with, and confined to, the exercise of the Commission’s functions. The Commission may “require the nominated contact for the critical incident to provide, within the period specified by the Commission, access to documents obtained or prepared by police officers for the purposes of the investigation (including any report about the conduct of the investigation and progress on it)” (emphasis added): s 114(3)(d).

137. The Commission is required to give the Commissioner of Police (or the coroner) either “advice confirming that it considers the investigation was fully and properly conducted”, or “if it considers any aspect of the investigation was inappropriate, advice of its concerns”: s 117(1). These are the only two alternatives. There is no alternative which enables the Commission to indicate that it could not form a view because, for example, the police failed to provide it with sufficient information. I consider that the Commission’s obligation to either confirm or advise of its concerns is a powerful, but not the only, indication that Parliament intended to abrogate public interest immunity with respect to compulsory production of documents and information by the police to the Commission under Pt 8.

138. It is also significant that Parliament has expressly addressed the dangers of particular information being disclosed by providing, in s 179(2), that “[t]he Commissioner of Police may at any time notify the Commission that specified police information (referred to in this section as critical police information) is information the disclosure of which may, in the opinion of the Commissioner of Police, prejudice the investigation or prevention of crime, or otherwise be contrary to the public interest.” When such a notification has been made, the Commission is not to disclose critical police information “at any time”: s 179(5).

139. Many of the authorities upon which the applicants rely (which are referred to in Ward P’s reasons) concern privileges, such as the privilege against self-incrimination. Unlike the privilege against self-incrimination, public interest immunity is not primarily concerned with the interests of the individual against the State. Rather, it is concerned with the public interest in protecting from disclosure particular information or documents or categories of information or documents, the disclosure of which is regarded as deleterious to the public interest: Sankey v Whitlam at 38-39. It is important not to apply the statements of principle in such cases beyond the privilege or immunity and the legislation with which the particular case was concerned, beyond the general principle that these privileges and immunities apply unless abrogated, either expressly or by necessary implication, by the legislature.

140. Parliament is entitled both to abrogate public interest immunity at common law and to choose the way in which the public interest is best advanced in particular circumstances. Whether it has abrogated public interest immunity in the context of Pt 8 is a question of statutory construction. Although it has not done so expressly in Pt 8 of the Act, it has, in my view, done so by necessary implication. It has made clear its intention that the public interest in keeping certain documents and information confidential can be better served by the mechanism provided for in s 179(2) than by retaining public interest immunity and, accordingly, that the police’s obligation to provide documents to the Commission pursuant to s 114(3)(d) is not qualified by public interest immunity.

141. The consequence of this legislative choice is that the police are to provide to the Commission all documents requested which fall within s 114(3)(d), even those which, had the immunity not been abrogated, would have been subject to public interest immunity. This construction tends to promote the purpose of Pt 8, which, as referred to above, is to engender and promote public confidence in critical incident investigations by the police by subjecting such investigations to the Commission’s independent oversight and monitoring on the basis that the Commission will be privy to all relevant documents and information in the hands of the police (being those obtained or prepared by police officers for the purposes of the investigation).

142. Accordingly, the applicants are not entitled to the relief claimed and the summons ought be dismissed.

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Amendments

20 June 2024 - Amendment to [136]

10 October 2024 - [150] - s 178(9) amended to s 179(9)

Decision last updated: 10 October 2024