Danis v Commissioner of Police, NSW Police Force

[2021] NSWCATAD 311

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Danis v Commissioner of Police, NSW Police Force [2021] NSWCATAD 311

Hearing dates:

19 April 2021 and 24 June 2021 (with written closing submissions on 25 June and 9 July 2021)

Date of orders:

25 October 2021

Decision date:

25 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Starke, Senior Member

Decision:

(1) The decision of the respondent dated 29 March 2020 to refuse access to a copy of an electronically recorded interview on a DVD between a named third party and the respondent on or about 23-27 March 2014 and the transcript of the DVD is affirmed.

(2) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the respondent on a confidential basis is prohibited and is not to be released to the applicant or the public.

Catchwords:

ADMINISTRATIVE LAW — Government Information (Public Access) — Grounds for refusing access — Balancing competing public interest factors for and against disclosure — Public interest considerations in favour of disclosure include personal factors of the application — public interest in enhancing Government accountability — whether disclosure of the information could reveal or substantiate an agency has engaged in misconduct or negligent, improper or unlawful conduct — Public interest considerations against disclosure include whether disclosure would prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions — whether information was given in confidence — whether disclosure of information provided in confidence would found an action against an agency for breach of confidence — whether personal information of an individual disclosed in family law proceedings had already been revealed — whether disclosure of information about a child would not be in the child’s best interests to have the information disclosed.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Family Law Act 1975 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Independent Commission Against Corruption Act 1988 (NSW)

Oaths Act 1900 (NSW)

Police Act 1990 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90

AH & SS [2005] FamCA 854

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

Australian Vaccination Network v Dept of Finance & Services [2013] NSWADT 60

Battin v University of New England [2013] NSWADT 73

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Commissioner of Police v Danis [2017] NSWCATAP 7

Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Danis v Commissioner of Police [2021] NSWCATAP 23

Danis v Commissioner of Police [2021] NSWCATAP 57

Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138

Director of Public Prosecutions v Smith [1991] 1 VR 63

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

EMF v Cessnock City Council [2021] NSWCATAP 234

Flack v Commissioner of Police, NSW Police [2011] NSWADT 286

Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18

Hurst v Wagga Wagga City Council [2011] NSWADT 307

JY v Commissioner of Police, NSW Police [2008] NSWADT 306

Leech v Sydney Water Corporation [2010] NSWADT 298

Liang v University of Technology, Sydney [2018] NSWCATAP 285

Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550

McKinnon v Secretary, Dept of Treasury [2006] HCA 45

Meacham v Cmr of Police [2020] NSWCATAP 107

Medlyn v Commissioner of Police [2020] NSWCATAD 125

Mifsud v Campbell (1991) 21 NSWLR 725

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

NSW Police Force v Cammilleri (GD) [2012] NSWADTAP 19

Page v Commissioner of Police [2020] NSWCATAD 163

Public Service Assn v Premier’s Dept [2002] NSWADT 277

Raven v University of Sydney [2015] NSWCATAD 104

Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98

Saleam v Director General, Department of Community Services and Ors [2002] NSWADT 41

Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163

Seremetis v Cmr of Police; Seremetis v Dept of Communities and Justice [2020] NSWCATAD 317

Simring v Commissioner of Police, NSW Police [2009] NSWSC 270

Sullivan v Civil Aviation Authority (2014) 22 FCR 555

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Transport for NSW v Searle [2018] NSWCATAP 93

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

Chester Porter QC, The Gentle Art of Persuasion, Random House, 2nd Ed, 2008, extracts purported to be from pages 23 and 165;

Jackie Amos, Leonie Segal and Chris Cantor, ‘Entrapped Mother, Entrapped Child: Agonic Mode, Hierarchy and Appeasement in Intergenerational Abuse and Neglect’ (2015), 24 J Child Fam Stud 1442-1450;

Sophie Isobel, Melinda Goodyear and Kim Foster, ‘Psychological Trauma in the context of Familial Relationships: A Concept Analysis’ (2019), Vol 20(4) Trauma, Violence & Abuse 549-559.

Category:

Principal judgment

Parties:

Emil Danis (Applicant)
Commissioner Of Police, NSW Police Force (Respondent)

Representation:

Applicant (self-represented)
Sparke Helmore (Respondent)

File Number(s):

2020/0097662

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis. That material is not to be published or released to the applicant or the public, without further order of the Tribunal.

REASONS FOR DECISION

Introduction and overview

1. Mr Emil Danis (the applicant) applied to the Tribunal on 30 March 2020 for administrative review of the determination by the Commissioner of Police, NSW Police Force (the respondent) of an access application made under the Government Information (Public Access) Act 2009 (NSW) (the Act).

2. Mr Danis’ access application of 9 March 2020 sought access to a copy of the DVD and transcript of an interview between officers of the respondent and a named third party (the Third Party) conducted on or about 23-27 March 2014 (the Withheld Information).

3. In its determination dated 29 March 2020 (the Decision), the respondent refused to deal with the access application on the basis of s 60(1)(d) and s 60(1)(e) of the Act. At that point in time, the respondent believed that the information requested in the access application had been produced under subpoena to the Family Court of Australia (the FCoA) in relation to proceedings in which the applicant was a party, and the respondent believed the material was available for the applicant to access.

4. The respondent subsequently became aware that the FCoA had confirmed that the subpoenaed material was not available to the applicant. At a case conference held on 5 May 2020, the respondent sought an order for the matter to be remitted, in order to reconsider the basis upon which it had refused access to the information sought. The Tribunal was not minded to make that order.

5. The respondent set out in its submissions that it no longer sought to rely on s 60(1)(d) and s 60(1)(e) of the Act. Instead, the respondent submitted that, pursuant to s 58(1)(d) of the Act, access to the Withheld Information ought be refused on the grounds that there is an overriding public interest against disclosure. The respondent relied upon the public interest considerations against disclosure set out in cl (1)(d), cl 1(g), cl 3(a) and cl 3(g) of the Table to s 14 of the Act (the s 14 Table) as matters outweighing considerations in favour of disclosure.

6. The applicant disputed that the respondent had established that the public interest considerations relied upon could reasonably be expected to have the effects set out in cl (1)(d), cl 1(g), cl 3(a) and cl 3(g) of the s 14 Table.

7. In the applicant’s submission, the public interest considerations against disclosure relied upon by the respondent were outweighed by the presumption in favour of disclosure in s 5 of the Act, the general public interest consideration in favour of disclosure in s 12(1) of the Act, other public interest considerations in favour of disclosure in s 12(2)(a), s 12(2)(c) and s 12(2)(e) of the Act, and the personal factor of the access application as referred to in s 55(1)(a) of the Act.

8. The applicant, in final submissions, asserted that the respondent’s officers had failed to comply with s 71 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) concerning the provision of information or a statement to the Tribunal that is false or misleading in a material respect. The respondent strongly refuted the applicant’s assertion that its officers had failed to comply with s 71 of the NCAT Act or that they had otherwise engaged in misconduct.

9. The respondent’s Decision is a reviewable decision under s 80 of the Act. The applicant did not seek an internal review of the respondent’s decision and applied to this Tribunal under s 100(1) of the Act for an administrative review under s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

10. Under s 105(1) of the Act, in an administrative review of a decision made by an agency, the burden of establishing that its decision is justified lies on the agency, in this case, the Commissioner of Police.

11. The applicant pressed for access to the Withheld Information, a matter which the respondent opposed.

The task for the Tribunal

12. Under s 63 of the ADR Act, the Tribunal’s task is to make the “correct and preferable decision” as to whether access to the Withheld Information should be given to Mr Danis, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. The time at which the determination is to be made as to the correct and preferable decision is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

13. In considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the respondent but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In this regard, in undertaking this review, the Tribunal had before it the submissions and evidence from both parties as well as confidential material provided only to the Tribunal Member.

14. In determining the application, the Tribunal may affirm the respondent’s Decision, vary the Decision, set aside the Decision and make another decision in substitution for the Decision set aside, or set aside the Decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal: s 63(3) of the ADR Act.

Issues to be considered

15. There are a number of issues to be considered:

1. whether, because of the FCoA proceedings, the information sought by the applicant has already been “revealed” having regard to the meaning ascribed to that term under the Act, and also having regard to the application of s 121 of the Family Law Act 1975 (Cth) (the FLA);

2. the applicant’s objection to any reliance being placed on the evidence of Detective Sergeant Ferns (DS Ferns), an officer of the respondent who gave evidence and was cross-examined in the hearing, on the grounds suggested by the applicant that DS Ferns purported to be an impartial expert witness. While I note that both parties in fact rejected the proposition that DS Ferns was acting as an expert witness, I will nonetheless address the applicant’s submissions insofar as it is relevant to my assessment of the evidence of DS Ferns and the weight I give to it;

3. whether, as alleged by the applicant, DS Ferns and other officers of the respondent, namely Detective Senior Constable O’Donnell and Inspector Greene, failed to comply with s 71 of the NCAT Act in providing information or a statement to the Tribunal knowing that the information or statement is false or misleading in a material respect;

4. whether the Withheld Information, if released, would give rise to public interest considerations against disclosure on the grounds that:

1. as set out in cl 1(d) of the s 14 Table, disclosure could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions;

2. as set out in cl 1(g) of the s 14 Table, disclosure could reasonably be expected to found an action against the respondent for breach of confidence or otherwise result in the disclosure of information provided to the respondent in confidence;

3. as set out in cl 3(a) of the s 14 Table, disclosure could reasonably be expected to reveal an individual’s personal information; and

4. as set out in cl 3(g) of the s 14 Table, disclosure could reasonably be expected, in the case of the disclosure of personal information about a child, to not be in the best interests of the child to have the information disclosed;

5. the identification of public interest considerations in favour of disclosure (which, as noted in s 12(2) of the Act, are not limited), and whether the following matters raised by the applicant ought be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of the Withheld Information:

1. whether, pursuant to s 12(2)(a) of the Act, disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance;

2. whether, pursuant to s 12(2)(c) of the Act, disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds;

3. whether, pursuant to s 12(2)(e) of the Act, disclosure of the information could reasonably be expected to reveal or substantiate that the respondent (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct); and

4. whether, pursuant to s 12(2) of the Act, there is a public interest in the administration of justice, relying upon the decision in JY v Commissioner of Police, NSW Police [2008] NSWADT 306 (JY’s case);

6. Whether, pursuant to s 55 of the Act, there are any personal factors of the application that the respondent is entitled to take into account (for or against disclosure) in determining whether there is an overriding public interest against disclosure of the Withheld Information;

7. whether, after weighing the considerations for and against disclosure and the personal factors of the access application, there was an overriding public interest against disclosure which justified the respondent’s decision to refuse to release the Withheld Information.

Other contentions by the applicant

16. For completeness, I will address the other contentions in the applicant’s closing submissions filed on 25 June 2021 in which he submitted (in paragraph 3) that s 3(1)(a), s 5, s 36, s 60 and s 73 of the Act “further support disclosure”. Dealing with each of those provisions in the Act:

1. with the exception of the chapeau to s 3 which sets out the objects of the Act (referred to earlier in these reasons), s 3(1)(a) regarding the proactive public release of government information by agencies does not have relevance in determining an access application;

2. the presumption in favour of disclosure of government information in s 5 of the Act (also referred to earlier in these reasons) is not unqualified. The presumption only applies if there is no overriding public interest against disclosure. This case turns on exactly that issue, i.e. whether, after applying the balancing test in s 13 of the Act, there is an overriding public interest against disclosure;

3. section 36 sits within Division 5 of the Act. It relates to Government contracts with the private sector, and has no relevance in these proceedings;

4. section 60 of the Act relates to a circumstance where a government agency refuses to deal with an access application. Since the respondent no longer relies upon s 60(d) and s 60(e) of the Act, it is not an issue of relevance in these proceedings;

5. section 73(1) of the Act says that conditions cannot be imposed on the use or disclosure of information where it is disclosed in response to an access application, and has no relevance where a respondent has refused to disclose the information requested. Likewise, s 73(2) and s 73(3) have no application to the facts in this case. The applicant’s argument as to how s 73 of the Act further supports disclosure is unclear and possibly misconceived. In my view, as will be argued below, s 73 of the Act works against disclosure in the circumstances of this case.

Material before the Tribunal

17. For the applicant, the following material was provided:

1. Administrative review application dated 30 March 2020;

2. Submissions in Reply dated 29 June 2020;

3. Affidavit by Emil Danis sworn on 29 June 2020 with annexures “A” to “Z (with exception of “Q”) and “AA” (marked as “Exhibit A1”);

4. For reference purpose only, a copy of an Affidavit by Emil Danis sworn on 28 January 2020 in connection with proceedings 2019/258041 before this Tribunal (marked for identification as “Exhibit A2”);

5. Outline of oral submissions made in the hearing on 19 April 2021 (filed on 21 April 2021);

6. Documents tendered for reference during the hearing on 19 April 2021 (and subsequently filed on 22 April 2021) comprising:

1. Chester Porter QC, The Gentle Art of Persuasion, Random House, 2^nd Ed, 2008, extracts purported to be from pages 23 and 165;

2. Sophie Isobel, Melinda Goodyear and Kim Foster, ‘Psychological Trauma in the context of Familial Relationships: A Concept Analysis’ (2019), Vol 20(4) Trauma, Violence & Abuse 549-559; and

3. Jackie Amos, Leonie Segal and Chris Cantor, ‘Entrapped Mother, Entrapped Child: Agonic Mode, Hierarchy and Appeasement in Intergenerational Abuse and Neglect’ (2015), 24 J Child Fam Stud 1442-1450,

(marked for identification as “Exhibit A3”);

7. Final written submissions filed on 25 June 2021 (after the hearing in this matter had concluded).

18. For the respondent, the following material was provided:

1. Written submissions filed on 2 June 2020;

2. Affidavit by Detective Sergeant Jason Ferns sworn on 2 June 2020 (marked as Exhibit “R1”);

3. Submissions in Reply filed on 10 July 2020;

4. Further submissions filed on 9 July 2021 (after the hearing in this matter had concluded).

Oral evidence

19. Detective Sergeant Ferns gave evidence and was cross-examined on 19 April 2021 and 24 June 2021.

Oral submissions

20. Closing oral submissions were made by both parties who were also directed to provide final submissions in writing. Both parties filed their final submissions in compliance with the Tribunal’s directions made on 24 June 2021.

Confidential material

21. The respondent also provided to the Tribunal on 16 April 2021, on a confidential basis, a copy of the transcript of interview between officers of the respondent and the Third Party conducted on or about 23 – 27 March 2014 (marked as “Exhibit CR1”).

22. No evidence was taken, and no submissions were made, in relation to the confidential material during the hearing. It was read by the Tribunal Member and was not provided to the applicant or the public. There was, accordingly, no necessity to consider any issues by way of confidential session.

23. Section 107(1) of the Act (extracted below) requires the Tribunal to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure:

107 Procedure for dealing with public interest considerations

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

24. To give effect to the prohibition in s 107(1) of the Act, the Tribunal made an order under s 64(1)(d) of the NCAT Act that the confidential material must not be disclosed to the applicant or the public. Section 64(1)(d) is set out below:

64 Tribunal may restrict disclosures concerning proceedings

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

…

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

Background

25. For convenience, I draw from paragraphs [2]-[7] under the heading “Relevant Background” in Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 (Danis 2020 Decision) to set out the factual background to Mr Danis’ access application.

26. On 14 March 2014, Mr Danis’ son (then aged 10 years) alleged that he had been assaulted by his mother’s then partner, the Third Party.

27. At the time of the alleged assault, Mr Danis was involved in contested legal proceedings before the FCoA with his former wife over parenting arrangements for the son and another child of the marriage.

28. Mr Danis and his son reported the alleged assault to the police on 15 March 2014.

29. On or about 23 – 27 March 2014, officers of the NSW Police Force (NSWPF) interviewed the Third Party in relation to the alleged assault. The interview was recorded electronically on a DVD and a transcript of the interview was made.

30. On 12 June 2014, the police interviewed Mr Danis’ son in relation to the alleged assault. I note, for contextual reference, that interview was also recorded electronically on a DVD and was the subject of an access application by Mr Danis, resulting in the Danis 2020 Decision which affirmed the respondent’s decision to refuse to give access to the DVD to Mr Danis. I also note that Mr Danis appealed the Tribunal’s decision which was affirmed by the Appeal Panel in Danis v Commissioner of Police [2021] NSWCATAP 23 (Danis Appeal Decision).

31. On 8 July, the NSWPF notified Mr Danis that its investigation into the alleged assault against his son had been terminated, that no charges would be laid, and that no further action would be taken.

Legislative framework and legal principles

32. The fundamental and primary applicable law is contained in the Act as discussed below.

Object of the GIPA Act

33. Interpretation of the Act is governed by s 3 of that Act which provides that the object of the legislation is to open government information to the public:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by—

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament—

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

Definition of ‘government information’

34. 'Government information' is broadly defined in s 4 of the Act to mean 'information contained in a record held by an agency'. There is no dispute in this application that the NSWPF is an agency for the purposes of the GIPA Act. There is also no dispute that the DVD and Transcript which the applicant has sought access to (the Withheld Information) is 'government information' within the meaning of the Act.

Presumption in favour of disclosure of government information

35. Section 5 of the Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

Legally enforceable right to information unless there is an overriding public interest against disclosure

36. Under s 9 of the Act, applicants for access to government information have a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.

Public interest considerations in favour of disclosure

37. Section 12(1) of the Act provides that there is a general public interest in favour of the disclosure of government information. The Act does not limit the range of public interest considerations in favour of disclosure and s 12(2) contains a note setting out examples of those considerations:

12 Public interest considerations in favour of disclosure

(1) There is a general public interest in favour of the disclosure of government information.

(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note.

The following are examples of public interest considerations in favour of disclosure of information—

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

38. As noted in the introductory remarks of these reasons, the applicant relies upon s 12(2)(a), s 12(2)(c) and s 12(2)(e) of the Act as considerations in favour of disclosure of the Withheld Information, as well as an additional consideration with reference to JY’s case.

Public interest considerations against disclosure

39. Section 14(2) of the Act provides that the public interest considerations listed in the Table may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

40. In this matter, as earlier stated, the respondent relied upon cl 1(d), cl 1(g), cl 3(a) and cl 3(g) in the s 14 Table, asserting that they could reasonably be expected to have one or more of the stated effects set out in each of those clauses.

The meaning of “could reasonably be expected to” in the s 14 Table

41. Each of the public interest considerations relied upon by the respondent contains the introductory words “could reasonably be expected to have one or more of the following effects…”.

42. The words “could reasonably be expected to” are to be given their ordinary meaning: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [40], drawing from the decision in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] where the Tribunal said:

“The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.”

43. More recently, the Appeal Panel’s decision in Transport for NSW v Searle [2018] NSWCATAP 93 (Searle) considered the “could reasonably be expected” test at [68]:

“(1) The appellant bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105.

(2) The words “could reasonably be expected” are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Dept of Treasury [2006] HCA 45 at [61] —

“… when their Honours said, as they did, that the words required a ”judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous,” to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, “to place an unwarranted gloss upon the relatively plain words of the Act.”

(3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Dept of Finance & Services [2013] NSWADT 60 at [22].

(4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].”

Meaning of “prejudice”

44. The meaning of “prejudice” was examined in Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst) at [60] and affirmed in Searle at [68(5)]:

“68(5) “Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].”

45. How to determine whether the disclosure of information could reasonably be expected to prejudice the future supply of information from an informant was addressed in NSW Police Force v Cammilleri (GD) [2012] NSWADTAPS 19 at [21], [22] and [26] and affirmed in Searle at [68(6)]:

“68(6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: NSW Police Force v Cammilleri (GD) [2012] NSWADTAP 19 at [21], [22] and [26].”

The meaning of ‘reveal’

46. The term 'reveal' is defined in cl 1 of Sch 4 of the Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'. This will be discussed further in these reasons, when considering the applicant’s submissions on whether the DVD and Transcript had already been ‘revealed’ in the context of the FCoA proceedings.

The meaning of ‘personal information’

47. The term 'personal information' is defined in cl 4 of Sch 4 of the Act:

4 Personal information

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

Public interest balancing test under s 13 of the Act

48. Where information is not subject to a conclusive presumption of an overriding public interest against disclosure (refer to s 14(1) and Schedule 1 of the Act), regard must be had to the public interest balancing test set out in s 13 of the Act.

49. Under s 13 of the Act, there can only be an overriding public interest against disclosure of government information for the purposes of the Act when the public interest test is satisfied as set out below:

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

Caselaw guidance on balancing public interest test considerations

50. I have noted a number of cases which provide guidance on how to apply the public interest balancing test, the meaning of “could reasonably be expected to” and the meaning of “prejudice”.

51. How to apply the public interest test under s 13 of the Act was confirmed in Flack at [19]:

“Accordingly, in all cases other than those falling under the terms of Sch 1, the public interest test under the GIPA Act involves the following:

(a) identifying the public interest in favour of disclosure;

(b) identifying the public interest against disclosure; and

(c) determine where the balance lies.”

52. Further guidance on weighing public interest considerations for and against disclosure was provided in Hurst at [94]:

“Ultimately, the balancing of these competing interests is a question fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.”

53. The balancing exercise requires the Tribunal to make a broad value judgment. However, as noted in Page v Commissioner of Police [2020] NSWCATAD 163 (Page) at [51]:

“…that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].”

Principles that apply to determining an overriding public interest against disclosure

54. Under s 15 of the Act, a determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles which, with the exception of s 15(e) which qualifies, in the case of disclosure, that conditions cannot be imposed upon the use or disclosure of information, promote the objects of the Act and promote the disclosure of information:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles—

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

Personal factors of the application taken into account

55. In deciding an application where it is necessary to balance public interest considerations, an agency and the Tribunal is entitled under s 55 of the Act to take into account the personal factors of the application which are set out below:

55 Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section—

(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

56. These personal factors of the application can be taken into account as factors in favour of disclosure: s 55(2). They can also be taken into account as factors against disclosure if (and only to the extent that) they are relevant to the respondent’s and the Tribunal’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 of the Table (but not clause 1, 6 or 7 of the Table). In the present case, the respondent relied upon clauses 3(a) and 3(g) in the s 14 Table. Accordingly, the personal factors of the application may be taken into account as factors against disclosure if they are relevant to consideration of those clauses 3(a) and 3(g) in the s 14 Table that were relied upon by the respondent.

Decision to refuse to provide access because of an overriding public interest against disclosure

57. Section 58 of the Act sets out the range of decisions available to an agency when deciding access applications. Of particular reference to the present case is s 58(1)(d) which the respondent has relied upon in refusing to provide access to information sought on the basis that there is an overriding public interest against disclosure:

58 How applications are decided

(1) An agency decides an access application for government information by—

…

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

…

No conditions are imposed on the use or disclosure of information

58. Section 15(e) and s 73(1) of the Act provide that an agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. In effect, disclosure of information under this provision is disclosure “to the world at large”.

The respondent has the burden of establishing that its decision is justified

59. Under s 105(1) of the Act, in an administrative review of a decision made by an agency, the burden of establishing that its decision is justified lies on the agency, in this case, the Commissioner of Police.

60. This requires the respondent to identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour and indicate the strength of each public interest consideration. The respondent is then obliged to justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Seremetis v Cmr of Police; Seremetis v Dept of Communities and Justice [2020] NSWCATAD 317 (Seremetis) at [36]; Taylor v Office of Destination NSW [2018] NSWCATAD 195 (Taylor) at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 (Forbidden Foods) at [52].

The applicant’s case

61. The applicant’s evidence comprised an affidavit (a combination of statements and submissions) with annexures “A” to “Z” and annexure “AA” (Exhibit A1). Otherwise, the applicant argued his position in written submissions and reference material filed on 29 June 2020, 21 April 2021, 22 April and 25 June 2021.

62. By way of clarification, I note that Exhibit A2 was not tendered into evidence in the proceedings before me and was marked for reference purpose only. Likewise, the applicant’s cross-examination of DS Ferns during the hearing that resulted in the Danis 2020 Decision was not tendered into evidence in the proceedings before me (although the applicant’s submissions filed on 29 June 2020 purported to rely upon that material as either evidence or argument in support of his position).

63. As already noted, the applicant was not cross-examined on his affidavit (Exhibit A1) or the annexures to it.

64. The applicant contended that the public interest considerations against disclosure relied upon by the respondent were not available to it since, in his submission, the information he sought had already been disclosed to him and others and “revealed in open court” during a hearing in the FCoA on 26 July 2018 (with reference to Annexure “T” to Exhibit A1).

65. The applicant also contended that if the Tribunal determined that the information he sought had not been “revealed”, it would be unjust, unfair and contrary to the provisions in s 3, s 5, s 12, s 36, s 55, s 60 and s 73 of the Act to affirm the respondent’s Decision. The arguments in support of such a contention have already been addressed in these reasons.

66. The applicant further contended that the respondent did not file any “direct or objective evidence” and relied on “speculations, bare assertions, unqualified opinions and false statements.” Further, the applicant asserted that the respondent’s conduct had been “dishonest, belligerent and obnoxious”.

67. The applicant submitted that the following matters outweighed the public interest considerations against disclosure relied upon by the respondent:

1. the presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the Act);

2. the general public interest consideration in favour of disclosure as set out in s 12(1) of the Act;

3. other public interest considerations in favour of disclosure such as those noted in s 12(2)(a), s 12(2)(c) and s 12(2)(e) of the Act;

4. the personal factor of the access application as referred to in s 55(1)(a) of the Act.

68. Mr Danis also referred to s 63(1)(b) of the ADR Act, i.e. that the Tribunal is to have regard to “any applicable written or unwritten law”. In this regard, in his submissions, the applicant sought to put before the Tribunal allegations that Detective Sergeant Ferns and the respondent’s officers Detective Senior Constable O’Donnell and Inspector Greene had all conducted themselves contrary to the provisions in s 6 and s 7 of the Police Act 1900 (NSW), and committed criminal offences against one or more of the following: s 71 of the NCAT Act, s 29 and s 33 of the Oaths Act 1900 (NSW) and s 317 of the Crimes Act 1900 (NSW). These allegations will be considered in connection with the third identified issue.

The respondent’s case

69. As noted in the Introduction to these reasons, the respondent’s Decision refused to deal with the access application on the basis of s 60(1)(d) and s 60(1)(e) of the Act. At that time, the respondent believed the applicant, as a party to FCoA proceedings in which the DVD and Transcript of an interview between the respondent and the Third Party had been produced under subpoena, could access the Withheld Information. Those grounds are no longer relied upon by the respondent, after the FCoA confirmed that the DVD and Transcript were not available to the applicant.

70. The respondent is not limited to defending the matter on the same basis as it did in making its original determination: Public Service Assn v Premier’s Dept [2002] NSWADT 277 at [57] and [59] . The respondent contended in its written submissions that, pursuant to s 58(1)(d) of the Act, access to the Withheld Information ought be refused because there is an overriding public interest against disclosure, relying upon public interest considerations against disclosure in cl (1)(d), cl 1(g), cl 3(a) and cl 3(g) of the s 14 Table.

71. The evidence relied upon by the respondent was set out in DS Ferns’ affidavit (Exhibit R1) and his oral testimony. Otherwise, the respondent argued its position in written submissions filed on 2 June 2020, 10 July 2020 and 9 July 2021 and oral submissions made during the hearing.

72. DS Ferns’ affidavit referred to his involvement in previous Tribunal proceedings involving the respondent and the applicant resulting in the Danis 2020 Decision. For the purpose of preparing his affidavit, DS Ferns reviewed the records held by the respondent in relation to its investigation of the applicant’s complaint about the alleged assault of his son by the Third Party.

73. Relying upon his general experience in the investigation of matters involving allegations of harm to minors, DS Ferns said that when a witness provides a statement in such matters:

1. the police do not, as a matter of practice, release confidential information relating to an interview because it is important for the community to trust police officers and that if confidentiality is not observed then witnesses would stop cooperating with police;

2. the release of such information can lead to compromised and contaminated evidence if, for example, a person uses information that has been released to investigate on their own or discuss evidence with other potential witnesses; and

3. the release of personal information or the record of interviews can reveal information that leads to reprisals and harassment against the alleged person of interest or witnesses for either providing certain information or being unwilling to assist the police.

74. In the circumstances of this matter, DS Ferns said that the police held serious concerns about releasing the Withheld Information to the applicant since:

1. the Third Party voluntarily assisted police with their enquiries after the applicant made the complaint that the Third Party had assaulted the applicant’s son, and no charges were laid against the Third Party as a result of the ensuing investigation;

2. the Third Party and the applicant are known to each other and had been involved in FCoA proceedings in relation to the applicant and his former spouse;

3. the police held concerns that the applicant’s son may have been coached by the applicant in relation to the allegations of abuse;

4. the release of information under the Act is a release to the “community at large”.

Consideration

75. By way of preliminary comment, I note that the applicant submitted that his evidence was not challenged and should be admitted as “proven facts”. I have already referred to the task of the Tribunal and identified what I consider to be the issues to be considered. In determining this application, I am not required to make findings on every argument or every submission advanced before me. Nor am I required to record, in my reasons, every argument or submission made: Liang v University of Technology, Sydney [2018] NSWCATAP 285 (Liang), referring to Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale) at [443] and affirmed recently in EMF v Cessnock City Council [2021] NSWCATAP 234 (EMF) at [31]-[32].

76. In his final written submissions, the applicant argued that the Tribunal was to consider the whole of his evidence before the Tribunal and not simply consider the information sought under the access application. In Mifsud v Campbell (1991) 21 NSWLR 725 (Mifsud), Samuels JA said at [728]:

“… it is an incident of judicial duty for the judge to consider all theevidence in the case. It is plainly unnecessary for a judge to refer to all the
evidence led in the proceedings or to indicate which of it is accepted or
rejected. The extent of the duty to record the evidence given and the
findings made depend, as the duty to give reasons does, upon the
circumstances of the individual case.” (emphasis added)

77. The following remarks of Meagher JA in Beale at [443]-[444] (citations omitted) provide guidance in determining the sufficiency of a statement of reasons:

“It follows, that reasons need not necessarily be lengthy or elaborate … The
scope of the reasons to be given is … related “… to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. [emphasis added].

…

Thirdly, a judge should provide reasons for making the relevant findings of
fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably
logical as well.

…

… In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of,at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.” [emphasis added]

78. The applicant (in paragraph 26 of Exhibit A1) was critical of the Tribunal for not mentioning in the Danis 2020 Decision the material he had provided in those proceedings that was critical of the family law system. In the proceedings before me, the applicant has annexed similar material to Exhibit A1. In my view, relying upon the reasoning in Liang, Beale, EMF and Mifsud, it is not necessary for me to refer to every document purportedly submitted as evidence in support of each party’s position, or every submission made. In that vein, I do not intend to have regard to the material in Annexures “V”, “W”, “X”, “Y” to Exhibit A1 because in my view they are not relevant to the issues to be considered.

Issue 1: Whether the information sought had already been revealed

79. A primary or threshold submission by the applicant was that the information he sought under the access application had already been ‘revealed’, since it had been used in family law proceedings on 26 July 2018 and, accordingly, he argued it was not open to the respondent to rely upon public interest considerations against disclosure.

80. As noted earlier in these reasons, the term 'reveal' is defined in the Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'. Pursuant to s 15(e) and s 73 of the Act, a release of information under the Act is a release to the whole world that cannot be subject to any conditions or restrictions: Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 (Colakovski) at [440].

81. Annexed to Exhibit A1 is a copy of an extract of transcript of proceedings in the FCoA on 26 July 2018 which contains the applicant’s cross-examination of the Third Party in relation to the alleged assault of the applicant’s son. The applicant conceded that whilst most of the police interview with his son had been played during the family law proceedings (a fact which I am prepared to accept), the DVD of the police interview with the Third Party had not been played in those proceedings. However, the applicant said that the transcript of the interview with the Third Party was made available for the purpose of his cross-examination of that witness in the family law proceedings.

82. The applicant argued that s 121 of the FLA does not prohibit the publication of the names of the parties or witnesses unless they are published “within an account of the family law proceedings”. Section 121 is set out below:

121 Restriction on publication of court proceedings

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings [emphasis added], under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

(2) …

(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings [emphasis added], referred to in that subsection shall be taken to identify a person if:

(a) it contains any particulars of:

(i) the name, title, pseudonym or alias of the person;

(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;

(iii) the physical description or the style of dress of the person;

(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;

(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;

(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;

being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;

(b) …; or

(c) …

83. On a proper reading of s 121(1) and s 121(3) of the FLA, the use of the disjunctive “or” immediately preceding “of any part of any proceedings” means that the restriction on publication is not limited to circumstances where an account of the proceedings is provided.

84. As explained in the Danis 2020 Decision at [87], while family law proceedings are generally held in open court under s 97 of the FLA, s 121 of that Act prohibits the publication or dissemination beyond the courtroom to the public at large, of an account of the proceedings (and I add to that “or any part of any proceedings”) which identifies the parties or those related to them. The policy behind s 121 was discussed by Chief Justice Bryant in AH & SS [2005] FamCA 854 at [26]-[27]:

“[26] Section 121 of the Act was inserted into the Family Law Act upon its inception. It is commonly accepted that when the Family Law Act was enacted, section 121 was placed in the Act to overcome prurient reporting that had occurred prior to the passing of the Family Law Act in relation to parties who were involved in divorce proceedings.

[27] Initially the court was a closed court, but subsequent amendments to the Act made the court open so that members of the public were free to attend and listen to and observe the proceedings. What they were not permitted to do however, by virtue of section 121, was to publish an account of the proceedings which identified parties or witnesses in the manner that I have described.”

85. Even if the interview (or part of the interview) between the police and the Third Party had been played in open court in the family court proceedings (and the evidence of the applicant is that it was not played), s 121 of the FLA clearly prohibits the publication or dissemination to the public at large of an account of the proceedings, or any part of the proceedings, which identifies the parties or those related to them.

86. I accept that, as a matter of practical consequence, in his cross-examination of the Third Party in the family law proceedings, questions drawn from the applicant’s reading of the transcript of the Third Party’s interview with police may have disclosed information contained in the transcript of that interview.

87. However, in line with the reasoning in the Danis 2020 Decision at [88], while some information contained in the transcript of the police interview with the Third Party may have been disclosed in the court room in the family law proceedings, the public at large outside the courtroom would not have access to the information because of the restriction on publishing and reporting imposed by s 121 of the FLA.

88. Notwithstanding that part of the interview with the applicant’s son had been played in the family law proceedings, it was not “revealed” for the purposes of the Act: Danis 2020 Decision at [88]. The Appeal Panel in the Danis Appeal Decision at [83] rejected the appellant’s contention that Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 (Richards) is authority for the proposition that in all cases information disclosed in open court has “been publicly disclosed”.

89. I find that the Withheld Information (also containing the personal information of the Third Party) was not publicly disclosed to the world at large and has not been “revealed” as defined in, or for the purposes of, the Act.

Issue 2: The basis on which the respondent’s witness provided evidence

90. The applicant placed considerable emphasis on his assertion that the respondent’s evidence relied heavily on the expert opinion of DS Ferns and that DS Ferns is not, and cannot be deemed to be, an independent expert witness.

91. The respondent’s submissions made it very clear that:

1. the respondent did not seek to qualify DS Ferns as an expert for the purpose of the Expert Witness Code of Conduct under Schedule 7 of Uniform Civil Procedure Rules 2005 (NSW); and

2. DS Ferns was put forward by the respondent as its witness for the purpose of providing evidence about the effects of the disclosure of the Withheld Information.

92. The basis for the applicant’s assertion appears to be his objection to DS Ferns’ views on ‘traumatic appeasement’ and ‘traumatic attachment’. DS Ferns expressed these views in the context of his years of experience in investigating assault and, in particular, assault involving children. Paragraphs 16 and 17 of his affidavit (Exhibit R1) further explain his observation and understanding of the phenomenon of ‘traumatic appeasement’ and ‘traumatic attachment’:

“16. First, from my years of experience, I am able to say that the investigation of assault is often traumatic, sensitive and emotional for those involved, including witnesses. As a Detective, I have experienced difficulty in securing the cooperation of victims because they are reluctant to speak to Police due to feelings of shame or not wanting to share personal information or their deepest and darkest secrets with a stranger. This can be explained as traumatic appeasement and traumatic attachment.

17. Further, they may fear embarrassment, reprisals or causing a negative impact on a community or within a family group. I have investigated and supervised numerous investigations where this phenomenon was observed. To overcome this and secure cooperation, the investigator must build up a high level of trust and an extraordinary amount of rapport with their victim.”

93. In cross-examination, the applicant challenged DS Ferns on his impartiality because of his employment with the respondent. DS Ferns disagreed with the proposition that he was an advocate for the respondent’s position because of his employment and therefore could not be impartial. He said that he could be an employee (of the respondent) and agree with the respondent’s position. Equally, if he was in opposition to the Commissioner of Police, he said that he would say so.

93. The applicant questioned DS Ferns at length on his level of expertise to give evidence and whether he could give a psychological or psychiatric opinion. DS Ferns said that the number of child abuse investigations that he had personally conducted or supervised as set out in his affidavit (Exhibit R1) was probably understated. He agreed that he was not qualified to give a psychological or psychiatric opinion. DS Ferns said that, as a result of his involvement in child abuse investigations and trials, he had heard the term ‘traumatic appeasement’ used by a clinical psychologist and had observed the phenomenon in cases where children love the abuser, but hate the abuse. He referred to cases where children hate the abuse itself but love the teacher, or the father or the family friend and continue to go back to them to ‘appease’, so the love returns to the victim. DS Ferns said that he had read many articles and recognised psychological impairment in children, but emphatically said that he is not a psychologist, is not an expert and cannot make an expert statement. He said that he draws from his years of experience in child abuse investigations to make the statements he made in his affidavit.

94. The applicant asked DS Ferns to explain his understanding of ‘trauma’ in the context of ‘traumatic appeasement’ and ‘traumatic attachment’. DS Ferns said that it could have a negative psychological impact. The applicant cited from the article by Sophie Isobel, Melinda Goodyear and Kim Foster, ‘Psychological Trauma in the context of Familial Relationships: A Concept Analysis’ (2019), Vol 20(4) Trauma, Violence & Abuse 549-559, which identified many forms of psychological trauma (at page 552) that are known to develop interpersonally within important relationships, particularly familial. The applicant specifically referred to the article’s identification of attachment trauma and suggested to DS Ferns that his views in paragraph 16 of his affidavit (Exhibit R1) were misplaced and that the body of social science does not support DS Ferns’ views. DS Ferns repeated his understanding in general terms of the phenomenon as he had observed it in the context of an ‘attachment’ to another person, possibly a family member.

95. The applicant then cited from the article by Jackie Amos, Leonie Segal and Chris Cantor, ‘Entrapped Mother, Entrapped Child: Agonic Mode, Hierarchy and Appeasement in Intergenerational Abuse and Neglect’ (2015), 24 J Child Fam Stud 1442-1450 at (at page 1445), about “appeasement” which was said to involve “the submissive pacification of an often dominant other, to deter further attacks or threats from the dominant”. Reading from page 1449 from the same article, the applicant noted that the authors held the view that “where a child is acting in a way that is submissive and deeply appeasing of the mother, the treatment needs to support the child to declare himself or herself in a more complete, authentic and powerful way to the parent.” The applicant then suggested to DS Ferns that he did not fully understand the concepts of ‘traumatic appeasement’ and ‘traumatic attachment’ and that there was no evidence to support DS Ferns’ statements in paragraph 16 of his affidavit. DS Ferns gave evidence that in a criminal case he has to explain why a victim went back to the abuser, so he has to understand the concept.

96. While the applicant explained to the Tribunal that the reason why he referred to scientific evidence was to rebut DS Ferns views on ‘traumatic appeasement’ and ‘traumatic attachment’, in circumstances where DS Ferns was not providing his views as an expert psychologist or psychiatrist, it is neither relevant nor necessary for me to assess whether his views accord with those articulated in the material put forward by the applicant.

97. I accept the respondent’s submission that DS Ferns was called to be the respondent’s witness for the purposes of the respondent’s evidence about the effects of the disclosure of the Withheld Information. I have no reason to call into question DS Ferns’ impartiality because of his employment with the respondent. In particular, his oral evidence on the position he would be prepared to take if he disagreed with the Commissioner of Police, demonstrated that he regarded his role as being one of impartiality.

98. I am satisfied that the evidence given by DS Ferns was given in the context of his observed experience over many years of investigating child abuse cases and not as an expert in the field of social sciences. I am also satisfied that DS Ferns’ evidence in paragraphs 16 and 17 was appropriate in the circumstances of this case.

99. I do not accept the applicant’s submissions that the evidence of DS Ferns should be excluded, or given negligible weight. On the contrary, I found DS Ferns to be a forthright, honest and credible witness whose insight and perspective were derived from his considerable experience in observing human behaviour, and were applied by him in a practical sense in order to build trust and rapport with victims and witnesses involved in investigations of assault.

Issue 3: Whether officers of the respondent gave false or misleading information or statements in breach of s 71 of the NCAT Act

101. In the applicant’s submission, Detective Sergeant Ferns and the respondent’s officers Detective Senior Constable O’Donnell and Inspector Greene had all conducted themselves contrary to the provisions in s 6 and s 7 of the Police Act 1900 (NSW) (the Police Act), and committed criminal offence against one or more of the following: s 71 of the NCAT Act, s 29 and s 33 of the Oaths Act 1900 (NSW) (the Oaths Act) and s 317 of the Crimes Act 1900 (NSW) (the Crimes Act). The applicant also asserted that DS Ferns, the respondent, and the respondent’s legal representatives made brazen attempts to turn the truth into lies and lies into truth, and to use the public interest considerations against disclosure to cover up what he described as “bad policing”.

102. Section 71 of the NCAT Act states as follows:

71 False or misleading statements

A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect.

Maximum penalty—50 penalty units or imprisonment for 12 months, or both.

103. As submitted by the respondent, neither Detective Senior Constable O’Donnell nor Inspector Greene have provided information or made a statement to the Tribunal in these proceedings. In those circumstances, s 71 of the NCAT Act does not apply to those individuals.

104. With respect to the assertion that DS Ferns has failed to comply with s 71 of the NCAT Act, the applicant’s only evidence on which he relies is his affidavit (being a mixture of statements and submissions with annexures) (Exhibit A1) together with other submissions that he made to the Tribunal.

105. As set out in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett) at [136]:

“[136]  It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that “disclosure … could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.“ As expressed, this consideration carries an imputation in relation to the agency’s conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal’s reasons to indicate that it had any material that “could reasonably be expected to reveal” the types of improper conduct to which the above formulation refers.”

106. In Barrett, the Appeal Panel found that the Tribunal did not have any evidentiary basis for a finding that the Commissioner of Police or an officer of the NSWPF had engaged in misconduct or negligent, improper or unlawful conduct. In the proceedings before me, the applicant argued that Annexure “Z” to his affidavit was part of a “cover up” to protect the dishonest police officers involved in the investigation of the alleged assault of his son. Annexure “Z” is a letter from the NSWPF to the applicant advising him that they had reviewed and assessed the applicant’s complaint and that the documents reviewed (including the FLA transcripts) did not contain any evidence that support charges against the Third Party. On its face, Annexure “Z” does not provide evidence for a finding as alleged by the applicant.

107. Paragraphs 33, 34, 35, 36, 37 and 38 of the applicant’s affidavit contain a number of assertions which represent his personal views that officers of the respondent regularly break the law and fabricate false evidence. They are not supported by objective evidence put before this Tribunal that DS Ferns or any other person has provided information or a statement that is false or misleading in a material respect in the proceedings before me.

108. The applicant’s allegations (which are strongly refuted by the respondent) about the conduct of officers of the respondent under the Police Act, the Oaths Act, the Crimes Act and the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act) are not among the issues for determination by this Tribunal. Further, the Tribunal does not have jurisdiction to make findings in relation to allegations of non-compliance with that legislation (a matter that the applicant acknowledged in his submissions filed on 21 April 2021).

109. On the basis of the material before me, I regard the applicant’s submissions that DS ferns failed to comply with his obligations under s 71 of the NCAT Act as having no basis. I refer also to my earlier comments on the evidence of DS Ferns whom I found to be truthful and a witness who, under oath, gave clear and direct answers to questions under cross-examination.

Issue 4: Public interest considerations against disclosure

110. By way of preliminary comment, paragraphs 6 and 7 of the applicant’s final written submissions filed on 25 June 2021 misconstrue the application of the decision in McKinnon v Secretary Department of Treasury [2006] HCA 65 (McKinnon) with respect to s 58(1)(d) of the Act. The real issues to be decided are whether the public interest considerations in cl 1(d), cl 1(g), cl 3(a) and cl 3(g) of the Act relied upon by the respondent are justified and whether after applying the balancing test in s 13 of the Act (taking into account the public interest considerations in favour of disclosure and any personal factors of the access application), there is an overriding public interest against disclosure entitling the respondent to refuse to provide access to the information sought on the grounds in, or pursuant to, s 58(1)(d) of the Act. Those issues to be decided do, in fact, require the Tribunal to look at a number of ‘facets’ as referred to in McKinnon at [16], to consider whether there is, or is not, an overriding public interest against disclosure.

Clause 1(d) of the s 14 Table

111. The respondent relied upon cl 1(d) of the s 14 Table to argue that disclosure of the Withheld Information could reasonably expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions.

112. The respondent’s mission and core functions are set out in s 6 of the Police Act:

6 Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions—

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section—

police services

includes—

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.

(5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988.

(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

113. The mission of the respondent is to work with the community to reduce violence, crime and fear: s 6(1) of the Police Act. Its core functions include the prevention and detection of crime and the protection of persons from injury or death. In the circumstances of this case, the applicant’s allegation of assault against his child clearly fell within the mission and functions of police to investigate whether a crime had been committed and to protect the applicant’s son from injury or death. As part of its investigation, the police interviewed the Third Party.

114. DS Ferns’ affidavit evidence was that when a witness gives information they are made to understand that:

1. the information they give is treated confidentially; and

2. their evidence will not be openly discussed with other people.

115. DS Ferns also deposed that the police need to assure witnesses that the information they give will be kept confidential in order to secure their trust and cooperation, free from the risk of reprisal or embarrassment. Further, in DS Ferns’ view, if police officers were unable to give such reassurance, most people would be reluctant to speak with them and this would make investigating crimes “near impossible.”

116. On DS Ferns’ evidence, the Third Party voluntarily assisted the police with their enquiries. The applicant submitted that the Third Party was familiar with police procedures and participated in the interview in order to avoid being arrested and charged. This submission was made in the context of the applicant’s reference to the Third Party’s criminal record. Annexure “A” to the applicant’s affidavit confirms that the Third Party had served 18 months of a prison sentence imposed upon him in relation to a charge of a federal criminal offence.

117. The applicant also asserted that the Third Party was sufficiently confident that, regardless of the truth, the police would not charge him. The applicant cites, as evidence of this, the Third Party’s admissions during his interview with police. Against that assertion, Annexures “P” and “Z” confirm that the police found insufficient evidence in relation to the alleged assaults upon the applicant’s son and closed their investigation. Annexure “Z” confirmed that the Family Law Court Transcripts were reviewed by police and they did not contain any evidence that support charges against the Third Party. That evidence is to be preferred over the applicant’s assertions which are not supported by objective evidence put before this Tribunal.

118. In the proceedings before me, the repeated evidence of DS Ferns that the Third Party participated voluntarily in an interview with the police, was not contradicted by direct evidence. On the material before me, including the Confidential Material (Exhibit CR1), I am of the view that the Third Party engaged in an interview with the police voluntarily, and did so on the understanding that the information would remain confidential.

119. I accept the evidence of DS Ferns who has spent the majority of his career (spanning around 20 years) with the NSWPF in criminal investigations, as reliable and credible. He has personally investigated approximately 200 child abuse cases and supervised well in excess of 1000 child abuse cases, figures which he said (in oral evidence) were underestimated. DS Ferns therefore has the experience to assert that the police could not carry out their functions if the community did not trust and support them, and come forward to inform or report on criminal activity, and to cooperate with them “to provide information in order to solve crimes.”

120. The applicant cross-examined DS Ferns vigorously and at length on the level of public trust in the police. The applicant referred to a stream of cases as reported in the media about professional standards in the NSWPF, asserting that police continue to engage in misconduct and unlawful conduct. In paragraph 32 of his affidavit, the applicant contended that DS Ferns’ statements about the public trusting the police are ‘misnomers’. With reference to Annexure “AA” to Exhibit A1 (the results of a global survey published in 2019 by Ipsos), the applicant contended that, globally, people do not trust the police. DS Ferns disagreed with the applicant’s assertions, saying that the police investigate and prosecute thousands of domestic violence cases and are trusted by the public.

121. The test in relation to cl 1(d) is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the agency will be able to obtain such information in future if trust and confidence in the NSWPF has been eroded: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19at [38].

122. The respondent contended that the NSWPF would be unable to obtain the type of information it received from the informant or similar sources in the future if such information was disclosed. The question as to prejudice to future supply is not to be determined by reference to the particulars of each particular situation but at a “broader operational level”. It is not necessary to show that it could reasonably be expected to occur on every occasion:  Cammilleri at [21], [22] and [26].”

123. I accept that the community’s trust and confidence in the NSWPF and the continued receipt of confidential information is essential to the effective performance of the NSWPF functions.

124. Relying upon the decision in Simring v Commissioner of Police [2009] NSWSC 270 (Simring) at [69], it is reasonable to expect that if the community trust in the police maintaining the confidentiality of information provided to it, is breached, the flow of information to police could dissipate. Smart AJ in Simring upheld that there is a strong public interest in criminal offences being reported to the police and sources of information not drying up. I also accept that, if that were to occur, it would severely impact the respondent’s effective exercise of its functions, including serious matters such as the investigation of alleged assault against a child.

125. In balancing the personal factors of the application and the considerations in favour of disclosure, I find that the balance weighs against disclosure, to ensure the community continues to feel comfortable in providing information to police to ensure the effective exercise of its functions, and is confident that such information will remain confidential.

126. I am therefore satisfied there is an overriding public interest consideration against disclosure of the Withheld Information. I give this consideration a substantial amount of weight.

Clause 1(g) of the s 14 Table

127. The respondent relied upon cl 1(g) of the s 14 Table to argue that disclosure of the Withheld Information could reasonably expected to found an action for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

128. As previously noted, pursuant to s 15(e) and s 73 of the GIPA Act, disclosure under the Act is a disclosure (without conditions or restrictions) to the whole world and is not limited to the applicant: Colakovski at [440].

129. The applicant submitted that he had carefully reviewed the DVD and Transcript of the police interview with the Third Party and that there was no mention of confidentiality.

127. I have already referred to the evidence of DS Ferns, in the context of cl 1(d) of the s 14 Table, with respect to the assurances of confidentiality given to victims and witnesses in order to secure their trust and cooperation free from reprisal or embarrassment.

128. DS Ferns’ evidence was that if the record of conversations with victims were to be released, it would be a breach of confidentiality that was promised to them which is often “crucial to security co-operation.” According to DS Ferns, the same applies to witnesses who, as a consequence of having their information released in circumstances where confidentiality had been assured, would stop cooperating with police. Fear of reprisals and harassment can result from the release of the record of interviews.

129. DS Ferns’ affidavit evidence referred to the qualification applying to a witness “statement”, that makes it clear that if a matter proceeds to prosecution, the statement might be used in court and the witness will likely need to give evidence in proceedings. Even in circumstances where a statement is made by an alleged perpetrator, the information stays confidential.

130. On balance, it is my view that, even if the applicant’s review of the DVD and Transcript of the Third Party’s interview with police, conducted in the context of the family law proceedings, did not reveal an express promise of confidentiality, that does not mean that the basis on which the Third Party assisted police with their enquiries was not done on the promise of confidentiality.

131. I agree with the respondent’s submissions that because of the public interest in ensuring that there is no breach of confidence in disclosure of information provided to an agency in confidence, the public interest consideration against disclosure outweighs the considerations favouring disclosure. I give substantial weight to the public interest consideration against disclosure in cl 1(g) of the s 14 Table.

Clause 3(a) of the s 14 Table

135. Clause 3(a) in the s 14 Table provides that there is a public interest against disclosure of information if disclosure of the information could be reasonably expected to reveal the personal information of individuals.

136. The term “reveal” is defined in Sch 4, cl 1 (Definitions) of the Act to mean “disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).”

137. As noted earlier in these reasons, the term “personal information” is defined in cl 4 of Sch 4 of the Act to mean:

information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

138. The personal information of the Third Party is contained in the Withheld Information. I have earlier found that there is no evidence before the Tribunal that the personal information of the Third Party has been publicly disclosed. I have found that the Withheld Information has thus not been “revealed” for the purposes of the Act.

139. There is no evidence that the Third Party has consented to the release of his personal information. Having regard to the evidence of DS Ferns, I am satisfied that the information given by the Third Party to the police was given voluntarily and in confidence for the purpose of assisting the police with their enquiries in relation to the alleged assault.

140. I am satisfied that the respondent has justified that cl 3(a) is a relevant public interest consideration against disclosure of the information. In my view, when balanced against the personal factors and considerations in favour of disclosure, the consideration in cl 3(a) is to be given substantial weight against disclosure.

Clause 3(g) of the s 14 Table

141. Clause 3(g) of the s 14 Table operates to protect against the disclosure of information about a child, in the best interests of the child.

142. The applicant submitted that his access application filed on 9 March 2020 and administrative review application filed on 30 March 2020 occurred after his son had turned 16 years of age in September 2019 and that, accordingly, cl 3(g) has no application. In oral submissions, the applicant described his son as a young person and not an adult at law, although I understand the son turned 18 in September 2021. He further submitted that it would be in his son’s interest and the public interest, for the Withheld Information to be released. In his opinion, the police officers involved in the investigation of the alleged assault were dishonest and corrupt, and failed in their duty of care by causing his son to be subjected to further abuse by being sent home where his mother and the Third Party resided.

143. Attempting to rely upon the decision in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 (AEZ), the applicant appeared to argue that the consideration of cl 3(g) turned upon an assessment of whether disclosure of the Withheld Information would expose his son to a risk of harm or of serious harassment or serious intimidation. I hasten to add that the application of AEZ to the circumstances of this case was not coherently articulated.

144. The facts in AEZ bear no resemblance to those in the case before me and the issue for determination by the Tribunal in AEZ concerned cl 3(f) of the s 14 Table (expose a person to a risk of harm or of serious harassment or serious intimidation). Cl 3(f) of the s 14 Table is not relied upon by the respondent in these proceedings. It appears that the applicant seeks to argue that since in AEZ the Tribunal did not accept that disclosure of the information in that case could reasonably be expected to expose the other party to a risk of harm or of serious harassment or serious intimidation, then the same rationale ought be applied to the release of the Withheld Information in these proceedings, on the basis that it would not expose the applicant’s son to a risk of harm. However, since cl 3(f) of the s 14 Table is not relied upon by the respondent in these proceedings, AEZ has no application and offers no guidance in relation to cl 3(g).

145. The respondent submitted that the DVD and Transcript of the Third Party’s interview with police gives his account and response to a number of interactions of a sensitive nature between the Third Party and the applicant’s son who was 10 years old at the time of the alleged incident.

146. The respondent relied upon the Tribunal’s discussion in the Danis 2020 Decision at [101]-[105] to argue that the same public interest consideration against disclosure applied, having regard to the sensitive nature of the information.

147. The Danis Appeal Decision upheld the Tribunal’s determination that cl 3(g) of the s 14 Table applied as a public interest consideration against disclosure.

148. In these proceedings, the applicant has provided no objective evidence to support his submission that it would be in his son’s interest and the public interest for the Withheld Information to be released. Having made that comment, I note that Clause 3(g) is expressed in the negative (i.e. whether disclosure would not be in the best interests of a child, as opposed to requiring a consideration of whether it would be in a child’s best interests for information to be disclosed).

149. The respondent submitted that, according to the decision in Medlyn v Commissioner of Police [2020] NSWCATAD 125 (Medlyn) at [115]-[116], cl 3(g) in s 14 of the Table applies where the person mentioned was a child at the time the document was created. Although the applicant’s son is now an adult, the expression “best interests of the child” is used in the generic sense:

“In my opinion, the phrase ‘in the interest of the child’ is used in a generic sense (ie the individual rights of the child) and not used in the context of the child to which the information relates.

On this basis, I am also satisfied that this public interest consideration against disclosure applies even though at the time consideration is given to whether the information should be disclosed, the child about whom the personal information relates is no longer a child. The fact the person is no longer a child is nevertheless a factor to be taken into account in balancing where the competing public interest lays.”

150. While no submissions were made to me about whether the disclosure of the Withheld Information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act), relying upon the analysis in Medlyn at [126], I am satisfied that the Withheld Information includes personal information about the applicant’s son that is very sensitive. In circumstances where there is no evidence that the applicant’s son has consented to disclosure of his personal information, I cannot discount that release of the information would likely be a breach of the information protection principle in s 18 of the PPIP Act.

151. As noted, pursuant to s 15(e) and s 73 of the Act, it is not possible for conditions to be imposed on the use or disclosure of information, and disclosure is to the world at large. If the information were to be released to the applicant, there is a real possibility that his son will become aware of it. The frank and clear evidence of DS Ferns was that the investigation of assault is often traumatic, sensitive and emotional for those involved. This was not challenged or rebutted by the applicant. While no evidence was placed before the Tribunal either way, there is nonetheless the possibility to be considered that the applicant’s son may find the information confronting if it were to be released notwithstanding he is now 18 years of age.

152. On balance, since the applicant’s submissions are unsupported by evidence to rebut the evidence of DS Ferns, I find that cl 3(g) applies as a public interest consideration against disclosure in the best interests of the applicant’s son, and I place a reasonable amount of weight on this ground.

Issue 5: Considerations in favour of disclosure

153. There are a number of public interest considerations in favour of disclosure to be taken into account:

1. the statutory right to access government information: s 3(b) of the Act;

2. the statutory presumption in favour of disclosure unless there is an overriding public interest against disclosure: s 5 of the Act;

3. the general public interest in favour of disclosure: s 12(1) of the Act;

4. pursuant to s 12(2)(a) of the Act, disclosure of the Withheld Information could reasonably be expected to:

1. enhance accountability of the NSWPF with respect to how it investigates allegations of assault within a domestic violence context; or

2. contribute to positive and informed debate on domestic violence, a matter considered to be of public importance.

5. pursuant to s 12(2)(c) of the Act, disclosure of the Withheld Information could reasonably be expected to ensure effective oversight of the expenditure of public funds. For the reasons that follow, I do not accept that this is a public interest consideration favouring disclosure in the circumstances of this case;

6. pursuant to s 12(2)(e) of the Act, disclosure of the Withheld Information could reasonably be expected to reveal or substantiate that the respondent (or any one of its officers) has engaged in misconduct or negligent, improper or unlawful conduct;

7. pursuant to s 12 (2) of the Act, the applicant has additionally submitted that there is a public interest in the administration of justice, relying upon the decision in JY’s case. For the reasons that follow, I do not accept that this is a public interest consideration favouring disclosure in the circumstances of this case.

154. It is not necessary to analyse sub-points (1), (2) and (3) as considerations favouring disclosure. However, with respect to sub-points (4), (5), (6) and (7), my reasoning is as follows.

Submission pursuant to s 12(2)(a) of the Act: Enhancing accountability and contributing to informed debate on a matter of public importance

155. There is no doubt that enhancing Government accountability is an example of a public interest consideration in favour of disclosure of information.

156. The subject of domestic violence is clearly a matter of public importance, deserving of informed debate.

157. The circumstances of this case have a connection with proceedings in the FCoA in which the applicant was a party and the Third Party was called as a witness.

158. It is clear to me after reading the Confidential Material that it is, as submitted on behalf of the respondent, simply a series of questions and answers between police officers and the Third Party in relation to an alleged assault. Nonetheless, I am of the view that releasing the Withheld Information (which under the Act operates as a release to the whole world) may enhance Government accountability and transparency in the exercise of the NSWPF’s functions in interviewing witnesses and persons of interest in relation to allegations of assault against a child.

159. In light of the evidence provided by the applicant (Annexures “P” and “Z” of Exhibit A1) that the allegations were carefully considered and it was found that the allegations were not substantiated by the evidence, I am of the view that release of the Withheld Information may contribute to positive and informed debate on the issue of domestic violence.

160. Accordingly, I give the consideration under s 12(2)(a) of the Act a reasonable amount of weight.

Submission pursuant to s 12(2)(c) of the Act: Effective oversight of the expenditure of public funds

161. The applicant’s submission concerning s 12(2)(c) of the Act, that disclosure of the Withheld Information could reasonably be expected to ensure effective oversight of the expenditure of public funds, is not supported by any argument or evidence. In the circumstances of this case, it was appropriate that the respondent expended public funds in assigning its officers to interview the Third Party in relation to the alleged assaults upon the applicant’s son, and that is not disputed by the applicant.

162. Indeed, the opposite argument could equally be explored, i.e. that the respondent did not expend public funds unnecessarily. After carefully considering the allegations of assault and reviewing the transcript of proceedings before the FCoA, the respondent found insufficient evidence to support the allegations and closed its investigation. Annexure “P” to Exhibit A1 demonstrates that the respondent advised the applicant that there was insufficient evidence in relation to the alleged assaults, and that as a result, the investigation was complete and no further action would be taken. Annexure “Z” to Exhibit A1 demonstrates that, in response to the applicant’s correspondence requesting the NSWPF to re-investigate allegations that the Third Party committed offences against the applicant’s son, the matter was forwarded to Leichhardt Police Area Command for review and assessment. Annexure “Z” advised that the applicant’s correspondence was assessed along with transcripts from the proceedings in the FCoA and that there was no evidence to support charges against the Third Party. As a result, the respondent advised that the allegations against the Third Party would not be reinvestigated.

163. Accordingly, I do not consider that s 12(2)(c) is a relevant consideration in this case and cannot be given any weight.

Submission pursuant to s 12(2)(e): That disclosure of the information could reasonably be expected to reveal or substantiate that the respondent has engaged in misconduct or negligent, improper or unlawful conduct

164. The applicant submitted that disclosure of the Withheld Information could reasonably be expected to reveal or substantiate that the respondent has engaged in misconduct or negligent, improper or unlawful conduct, and that this was a public interest consideration in favour of disclosure.

165. In support of this submission, the applicant made a great many, generalised assertions about the conduct of police officers in connection with the assault allegation, and cited numerous examples of alleged police misconduct or unlawful conduct. The applicant contended that his affidavit (and material annexed to his affidavit) is proof of his allegations that:

1. DSC O’Donnell was dishonest, misconducted herself, ignored a genuine report of child abuse and dismissed it out of hand, fabricated false evidence and attempted to ‘frame’ the applicant;

2. the dishonesty and misconduct of DSC O’Donnell and other police officers involved in the investigation of the alleged assault misled the FCoA, perverted the course of justice and caused the issuing of an ex-parte recovery order;

3. DSC O’Donnell and other police officers continued to make false or baseless reports and provide unsolicited unqualified opinions to the Department of Communities and Justice (formerly known as FACS) in order to ‘frame’ and charge the applicant;

4. there is ample publicly available information that many police officers engage in dishonest conduct, brutality or use of excessive force;

5. the evidence of DS Ferns is an attempt to cover up the misconduct or offensive conduct of the police officers involved and of the NSWPF in general, to protect dishonest police officers involved and protect the Third Party in exchange for information he might provide to police about other alleged criminals like him;

6. the conduct of the police officers involved constitutes corrupt conduct under the ICAC Act, as does the failure of the Commissioner of Police to report such conduct under the ICAC Act;

7. the NSWPF in general believe they are exempt from the law and break the law and knowingly fabricate false evidence;

8. the investigation into the alleged assault of his son was a ‘sham’ and a ‘cover up’, which is why the Third Party was not charged with assault;

9. the conduct of police is dishonest, belligerent and obnoxious;

10. officers of the respondent conducted themselves in a manner contrary to s 6 and s 7 of the Police Act.

166. The above paragraph in these reasons does not purport to exhaustively list all of the applicant’s assertions. In addition, the applicant asserted in closing submissions that the fact that the respondent objected to his summons for certain police officers to appear and give evidence in the proceedings, is a further clear indication of repeated and concerted attempts by the NSWPF to cover up what he described as dishonest, unlawful and cowardly conduct. I note that the Appeal Panel decision of Danis v Commissioner of Police [2021] NSWCATAP 57 found that the summons lacked a legitimate forensic purpose.

167. In the Danis 2020 Decision, the Tribunal considered similar submissions by the applicant. The Tribunal agreed at [114] with the applicant’s broad submissions that:

“…there is a public interest in the transparency and public scrutiny of the actions of the NSWPF in exercising their investigation and enforcement functions. Enhancement of government accountability and transparency are important objectives of the GIPA Act: s 3(1).”

168. With respect to the applicant’s submission that his affidavit (and material annexed to his affidavit) is proof of the misconduct alleged, the Tribunal in the Danis 2020 Decision said at [117]:

“I do not consider that the material referred to in, or the documents annexed to his affidavit substantiate the facts and allegations asserted in his written submissions or establish, as a matter of objective fact, that the police had falsified records or acted unlawfully in relation to their investigation of the assault incident. Taken at its highest, and adopting a benevolent approach to his affidavit, Mr Danis strongly believes the NSWPF have engaged in serious misconduct in their investigation of the alleged assault, but the fact that he strongly holds those beliefs does not turn them into matters of fact as opposed to mere assertion or allegation. [emphasis added]I have come to this conclusion for the limited purpose of determining whether there is a reasonable basis for concluding that the disclosure of the DVD could reasonably be expected to reveal police misconduct. Of course, it is not the function of the Tribunal in these proceedings to finally determine the substantive merits of Mr Danis’ complaints of police misconduct or for these proceedings to be used as a vehicle for the collateral review of the merits or validity of the action taken by the NSWPF in relation [to] the assault incident.”

169. The Danis Appeal Decision at [146] upheld the Tribunal’s finding.

170. The decision in Page at [58] is helpful in pointing out the requirement for the Tribunal to base its findings of fact on logically probative material and not on mere suspicion or speculation:

“[58]  The requirements for proof of questions of fact in administrative review proceedings generally were recently summarised by the Appeal Panel in Meacham v Cmr of Police [2020] NSWCATAP 107 at [54] and [83]:

[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62 , 68 (Deane J); [1980] FCA 85 ; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; (“Sullivan”) at [5]–[8], [15]–[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]–[8], [15]–[17].”

171. Reference has already been made in these reasons to Barrett at [136] concerning the serious nature of assertions such as those made by the applicant in these proceedings. It is not sufficient to make allegations without providing evidence to support them. In my view, the applicant’s submissions do not rise above mere assertion or suspicion. I agree with Senior Member Wall’s assessment, as noted in the Danis 2020 Decision at [124], that there is no doubt that the applicant strongly holds the view that he does, however “the strength of his belief does not transform that belief into fact.”

172. The respondent’s submissions remarked that the applicant in the current proceedings had made substantially the same submission in the proceedings that resulted in the Danis 2020 Decision. The respondent submitted that neither the content of the record of interview with the Third Party nor the applicant’s affidavit (Exhibit A1) could reasonably be expected to reveal or substantiate that the respondent had engaged in misconduct or negligent, improper or unlawful conduct.

173. The respondent submitted that the content of the record of interview reveals a series of questions and answers between police officers and the Third Party in relation to the alleged assault. Further, the respondent submitted, as evidenced by attachments to Exhibit A1 that:

1. the police had considered the applicant’s complaint and advised the applicant by letter dated 8 July 2014 that there was insufficient evidence in relation to the alleged assault and, on that basis, the investigation was complete and no further action would be taken (Annexure “P” to Exhibit A1); and

2. the police re-investigated various offences alleged to have been committed by the Third Party against the applicant’s son and confirmed that material (including the FCoA Transcripts) had been reviewed and assessed and the police determined not to reinvestigate the matter (Annexure “Z” to Exhibit A1).

174. Having regard to both parties’ evidence and submissions, I am satisfied that the applicant’s submissions made pursuant to s 12(2)(e) are not substantiated by logically probative material, as is required in line with the reasoning in Meacham, Pochi and Sullivan, and affirmed in Page. Accordingly, in determining where the balance of public lies, I attribute no weight to the submission.

Additional submission pursuant to s 12(2): a public interest in the administration of justice is a consideration in favour of disclosure

175. The applicant also submitted that there is a public interest in the administration of justice, referring to the decision in JY’s case which concerned the death of a severely disabled child while on her first overnight access with her father, JY’s ex-husband. The child’s death was the subject of a police investigation and a report to the Coroner who determined that an inquest was not necessary. The coroner provided JY with a copy of the final forensic medical report and short statement of reasons. JY was understandably anxious to gain as much information as possible of the circumstances of her daughter’s death and sought access to a number of statements provided to the police. The Commissioner of Police refused to disclose the statements on two grounds, firstly, the personal affairs exemption, and secondly, that the statements were provided to police on a confidential basis and that, if confidentiality was breached, the ability of the police to investigate matters would be compromised.

176. JY argued that the statements were made to police in anticipation of a public coronial inquest and contained evidence which the individuals concerned were prepared to give in court if required. On that basis, it was argued that the circumstances surrounding the death of a child are not matters of private concern to an individual. The Tribunal observed [at 41] that the matter was one of great sensitivity and emotional turmoil for those involved. The Tribunal considered the decision in Saleam v Director General, Department of Community Services and Ors [2002] NSWADT 41 (Saleam), where the Tribunal President concluded at [48] that:

“… some authorities do recognise that a point may be reached where the applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right: see Re Burns and ANU (No 2) (1985) 7 ALD 425 at 438-9 …”

177. The issue at stake in the proceedings before me is readily distinguishable on its facts, from JY’s case. The facts in these proceedings do not, fortunately, reach the same level of seriousness as would arise with the death of a child. In these proceedings, allegations of assault were investigated and reviewed a second time by the NSWPF which resulted in its conclusion that the evidence did not support charges against the Third Party. The applicant’s personal need for the Withheld Information is not of such strength as to constitute a public interest consideration in its own right.

178. The term ‘public interest’ is not defined in the Act and has been the subject of consideration in a great many cases. Overwhelmingly, the term is not regarded as a fixed concept. For the purposes of these proceedings, where the applicant’s personal need for the Withheld Information appears to have been argued as a matter of public interest the decision by the Victorian Court of Appeal in Director of Public Prosecutions v Smith [1991] 1 VR 63 (DPP v Smith) guidance:

“The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.”

179. Since the facts in this case are distinguishable from those in JY’s case, I find that the applicant’s analysis that his personal need for the Withheld Information is a public interest factor (in the administration of justice) favouring disclosure, does not reach the threshold of strength as found in Saleam. Applying the reasoning in DPP v Smith, his interest as an individual in the information sought cannot be characterised as an interest of the public. Accordingly, the applicant’s argument does not succeed and cannot be regarded as a consideration in favour of disclosure. I do not give the applicant’s submission any weight.

Issue 6: Personal Factors of the application to be taken into account

180. In accordance with s 55 of the Act, a number of personal factors are to be taken into account where it is necessary to balance public interest considerations. In this case, the personal factors favouring disclosure include:

1. pursuant to s 55(1)(a), the applicant’s identity and relationship with his son, noting that the interview relates to the Third Party’s interactions with the son;

2. pursuant to s 55(1)(a), the applicant’s motives for making the access application which, as were evident from the applicant’s cross-examination of the Third Party, the protection of his son.

181. To some extent, the above personal factors have limited relevance since the Third Party is no longer in a relationship with the applicant’s ex-wife and the risk of interaction with the applicant’s son is, arguably, minimal or negligible. Having said that, I hasten to add that no evidence or submissions were put before me concerning the level of risk that may currently exist in the domestic environment impacting upon the applicant’s son. In my assessment, the personal factors are to be given only a small amount of weight.

Issue 7: Whether, after applying the balancing test, there is an overriding public interest consideration against disclosure justifying the respondent’s Decision to refuse access

182. The Act requires the Tribunal to determine whether there is an overriding public interest consideration against disclosure which justifies the respondent’s Decision to refuse to provide access to the Withheld Information to the applicant.

183. In Page at [15], the task of the Tribunal in making this determination is set out very clearly:

“15. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision-maker to:

(1) identify relevant public interest considerations in favour of disclosure,

(2) identify relevant public interest considerations against disclosure,

(3) attribute weight to each consideration for and against disclosure, and

(4) determine whether the balance of the public interest lies in favour of or against disclosure of the government information.”

184. Also in Page at [18], the Tribunal explained that balancing considerations for and against disclosure does not call for quantitative analysis, and is guided by s 15 of the Act:

“18.The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise “is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation”: Battin v University of New England [2013] NSWADT 73 at paragraph [74]. In undertaking this exercise the Tribunal is to be guided by section 15 of the GIPA Act.”

185. When balancing the considerations for and against disclosure, the Tribunal makes a broad value judgment however that is not done in a vacuum. Consistent with the Appeal Panel’s decision in Searle at [104], I have taken into account the objects of the Act, the general presumption in favour of disclosure and the principles set out in s 15 (a)-(d) of the Act which operate to promote disclosure of information and promote the object of the Act.

186. Taking into account the public interest considerations for and against disclosure and the personal factors of the application, and the weightings I have considered to be appropriate and reasonable as discussed above, I find that, on balance, the public interest considerations against disclosure outweigh those in favour.

Conclusion

187. In making the correct and preferable decision, I am required to be satisfied that the respondent has discharged its onus under s 105 of the Act and that its Decision was justified. I am satisfied that, in line with the reasoning in Seremetis, Taylor and Forbidden Foods, the respondent has justified its Decision through submissions and evidence.

188. For the reasons given above, I am satisfied in the circumstances of this case that the public interest considerations against disclosure outweigh those in favour and that the correct and preferable decision is to refuse to release the Withheld Information pursuant to s 58(1)(d) of the Act.

Orders

189. Accordingly, I make the following orders:

1. The decision of the respondent dated 29 March 2020 to refuse access to a copy of an electronically recorded interview on a DVD between a named third party and the respondent on or about 23-27 March 2014 and the transcript of the DVD is affirmed.

2. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the respondent on a confidential basis is prohibited and is not to be released to the applicant or the public.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 25 October 2021