FLF v Children's Guardian

[2022] NSWCATAD 380

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FLF v Children’s Guardian [2022] NSWCATAD 380

Hearing dates:

8 June 2022

Date of orders:

07 December 2022

Decision date:

07 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

(1) The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision to refuse to provide access to certain information

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) – ss 9, 55, 63

Children’s Guardian Act 2019 (NSW) – ss 115, 127 128

Children and Young Persons (Care and Protection) Act 1998 (NSW) - ss 24, 29, 29(1A)

Child Protection (Working with Children) Act (NSW) – ss 6, 7, 15, 16, 19, 31, Part 2, Part 3

Civil and Administrative Tribunal Act 2013 (NSW) – s 64

Government Information (Information Commissioner) Act 2029 (NSW) – s 13

Government Information (Public Access) Act 2009 (NSW) – ss 3, 4, 9, 12, 13, 14, 15, 43, 58, 59, 80, 82, 89, 100, 105, 107 Schedule 1, Schedule 2, Schedule 4

Privacy and Personal Information Protection Act 1998 (NSW) – ss 4, 18, 25

Cases Cited:

Ansoul v City of Sydney [2017] NSWCATAD 65

Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185

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

Davis v Secretary, Department of Education [2022] NSWCATAD 55

Danis v Commissioner for Police [2020] NSWCATAD 138

Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13

Director General, Department of Family and Community Services v FEW [2013] NSWSC 1448

Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13

DYD v Commissioner of Police [2019] NSWCATAD 265

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Leech v Sydney Water Corporation [2010] NSWADT 298

Martin v Commissioner of Police [2005] NSWADT 23

McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164

Medlyn v Commissioner of Police (NSW) [2020] NSWCATAD 125

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Re Attorney-General’s Department and Australian Iron and Steel Pty Limited v Peter Cockcroft G260 of 1985 Administrative Law [1986] FCA 35

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286

Simring v Commissioner of Police [2009] NSWSC 270

VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2002) 225 CLR 88

Walker v SafeWork NSW [2022] NSWCATAD 94

Texts Cited:

Case Study 41, Royal Commission into Institutional Responses to Child Sexual Abuse

Information Commissioner, Guideline 4 – Personal Information as a public interest consideration under the GIPA Act.

Category:

Principal judgment

Parties:

FLF (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00054289

Publication restriction:

(1) The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
(2) The applicant is to be known by the pseudonym “FLF”.
(3) The disclosure of the documents contained in the agency’s confidential bundle filed 26 April 2022 is prohibited pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013

REASONS FOR DECISION

Introduction

1. This is an application by FLF (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review of an internal review decision made by the delegate of the Children’s Guardian (the agency) on 30 August 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act, the Act) in relation to his access application dated 26 May 2021. By that decision the agency refused to provide the applicant with access to certain information on the basis that there is an overriding public interest against its disclosure. The information in issue are reports made to the NSW Police Force (Police) and the NSW Department of Communities and Justice (DCJ) of an allegation of child sexual assault, and in the case of DJC, related documents. This application was made on 24 February 2022 (the application).

2. For reasons set out following, the Tribunal has concluded that the correct and preferrable decision in the circumstances is to refuse the applicant access to the information sought. The applicant’s access to the DCJ material must be refused because, pursuant to s 14(1) and clause 10 of Schedule 1 of the Act, there is a conclusive presumption that there is an overriding public interest against its disclosure. It is information to which s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (CYP(CP) Act) applies. His access to the Police material must be refused because pursuant to s 14(2) and clauses 1(d) and 1(f) of the Table to s 14 of the Act there is an overriding public interest against disclosure of this information which outweighs the statutory considerations in favour of its disclosure, and the personal aspects of the application. The Tribunal has therefore affirmed the reviewable decision.

Publication restriction

3. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides:

1. Tribunal may restrict disclosures concerning proceedings

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

   (a)   an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal.

   ...

   (c)   an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal.

   …

3. For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

   4. Having regard to sensitive subject matter of this review I am satisfied that publication of the applicant’s name in connection with this subject matter ought to be prohibited. Before reaching this conclusion, I provided the parties with the opportunity to make submissions in relation to the issue. Both parties supported this course.

   5. When this application came before the Tribunal for directions on 28 March 2022 an order was made that disclosure of the material to be filed by the agency on a confidential basis (the non-redacted s 58 documents) was prohibited pursuant to s 64 of the NCAT Act, subject to further order. Given the outcome of this administrative review, it is appropriate that this order be confirmed in these reasons.

Procedural history

6. The application first came before the Tribunal, differently constituted, on 28 March 2022 for a Case Conference. Orders were made for the parties to file their evidence and submissions and the application was set down for hearing.

Material before the Tribunal

Applicant

1. Application for Administrative Review filed on 24 February 2022, and its attachment, being the decision of the Information Commissioner dated 13 December 2021 arising from a review undertaken pursuant to s 13 of the Government Information (Information Commissioner) Act 2009 (NSW),

2. Submissions filed on 25 May 2022.

Respondent

1. Copy of the agency’s internal review decision with covering summary pages filed on 23 March 2022,

2. Section 58 documents filed on 26 April 2022. These documents were filed in two versions. A redacted version which was made available to the applicant and the Tribunal and a non-redacted version made available to the Tribunal only (the confidential bundle),

3. Affidavit of Andrew Mills dated 26 April 2022,

4. Statement of Detective Sergeant Tanya Byrne-Hickman dated 26 April 2022,

5. Certificate issued by the delegate of the Secretary, Department of Communities and Justice pursuant to s 29(1A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) dated 29 April 2022,

6. Statement of Detective Sergeant Tanya Byrne-Hickman dated 2 June 2022,

7. Submissions filed on 26 April 2022,

8. Submissions in reply dated 3 June 2022.

Hearing

7. The hearing was conducted by AVL in a Virtual Meeting Room in accordance with NCAT’s COVID-19 Revised Hearing Procedure as it was in force at that time. The applicant attended the hearing and conducted his own case. Ms K Mattes, employed solicitor, Crown Solicitor attended the hearing on behalf of the agency. The agency called as a witness Andrew Mills, Manager, Assessment and Review, Working with Children Check Operations Directorate, Office of the Children’s Guardian. The applicant had the opportunity to ask Mr Mills questions. The applicant also originally sought to ask questions of Detective Sergeant Tanya Byrne-Hickman, Child Abuse and Sex Crimes Squad, State Crime Command, NSW Police Force, Child Abuse Unit Illawarra. However, Detective Sergeant Byrne-Hickman was unable to make herself available to appear at the hearing due to an urgent operational matter. The applicant did not press her appearance in these circumstances.

Background

8. The agency is a person holding the public office of Children’s Guardian appointed by the Governor pursuant to s 115 of the Children’s Guardian Act 2019 (NSW) (CG Act). The principal functions of the Children’s Guardian are set out in s 128 of that Act. These functions relevantly include “to exercise functions relating to persons engaged in child-related work, including working with children check clearances, under the Child Protection (Working with Children) Act 2012 (NSW) (CP(WWC) Act). Section 127 of the CG Act provides that persons may be employed in the Public Service to enable the Children’s Guardian to exercise the Children’s Guardian’s functions. These are staff of the ‘Office of the Children’s Guardian’ (OCG).

9. Part 2 of the CP(WWC) Act imposes restrictions in relation to persons who may be employed in “child-related” work as that term is defined in ss 6 and 7 of that Act. Part 3 of that Act sets out the framework for obtaining a WWC Clearance including the classes of clearance (Division 1), the application process (Division 2), risk assessment of applicants and holders (Division 3), determination of applications for clearances (Division 4), duration and termination of clearances (Division 5) and the establishment of the Working with Children Register (Division 6).

10. In July 2016, the Royal Commission into Institutional Responses to Child Sexual Abuse conducted an inquiry into responses of disability service providers to allegations of child sexual assault. This inquiry was known by the name “Case Study 41”. The applicant was referred to in the case study materials published by the Royal Commission as a person involved in the sexual assault of a young person with Autism in 2012. Case Study 41 attracted media attention which reported the applicant’s name in connection with the alleged sexual assault.

11. On 21 January 2019, the applicant applied to the agency for a WWC Clearance.

12. The agency held records of news articles reporting Case Study 41 which included the allegations made against the applicant and the way in which those allegations had been dealt with. Prompted by this information, in preparation for its risk assessment in relation to the applicant’s application for a WWC Clearance, the agency exercised the power contained in s 31 of the CP(WWC) Act to obtain information from other agencies about the matter. This included Police and DCJ.

13. In this respect, s 31 of the CG Act relevantly provides:

1. Powers of Children’s Guardian to require production of information

2. The Children’s Guardian may, by notice in writing (an assessment notice), require any person to provide the Children’s Guardian with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children.

3. A requirement may be made for the purposes of –

   …

   (b)   determining an application for a working with children check clearance or an assessment of an applicant or the holder of a clearance, or

   …

4. A person to whom an assessment notice is given is authorised and required to comply with the notice.

5. An assessment notice may specify a day on or before which the notice is to be complied with.

6. If a person fails to comply with an assessment notice, the Children’s Guardian may, by further notice in writing served on the person (an enforcement notice), direct the person to comply with the assessment notice within a reasonable period specified in the notice (of not less than 28 days).

7. The enforcement notice must warn the person that a failure to comply with the notice is an offence.

…

1. A person who fails, without reasonable excuse, to comply with an enforcement notice in force under this section is guilty of an offence.

Maximum penalty – 5 penalty units

…

1. If documents are given to the Children’s Guardian under this section, the Children’s Guardian –

   (a)   may take possession of, and make copies of or extracts from, the documents, and

   (b)   may keep possession of the documents for such period as is necessary for the purposes of preparing the submission or considering the application, and

   (c)   during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Children’s Guardian.

2. In this section –

information includes documents

person includes a government agency

14. After receiving information in response to its s 31 Notices the agency commenced a risk assessment under s 15(3) of the CP(WWC) Act. Section 15 relevantly provides:

1. Assessment of applicants and holders

2. The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

…

1. Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

…

15. As part of its risk assessment process, the agency requested by Notice in writing to the applicant under s 16 of the CP(WWC) Act that he provide further information about the incident. The applicant did not respond to that Notice.

16. Subsection 16(2) provides that the Children’s Guardian may terminate an application for a Clearance if the applicant, fails, without reasonable excuse, to provide further information within 3 months of the request being made. The agency terminated the applicant’s application on this ground on 30 September 2019.

17. On 3 October 2019, the applicant again applied for a WWC Clearance. On 29 May 2020 the agency notified the applicant that his application had been referred for risk assessment under s 15(3) of the CP(WWC) Act due to the presence of workplace records related to allegations of child sexual assault.

18. On 20 April 2021 the agency issued the applicant with a Notice of Proposed Refusal of his WWCC application pursuant to s 19(1) of the CP(WWC) Act (Notice of Proposed Refusal). That Notice notified the applicant that at that stage of the application process the information the agency had considered indicated that he may pose a risk to the safety of children if he were to engage in child-related work. Pursuant to s 19(2) of the CP(WWC) Act, the agency provided the applicant with an opportunity to make any submission he wished to make in relation to the Proposed Refusal by 11 May 2021.

19. The Notice of Proposed Refusal sets out the list of records that the agency considered relevant in its risk assessment and the date each record was obtained. It also sets out in detail the reasons for the Proposal Refusal and the matters that informed it.

20. On 29 April 2021, the applicant made an application to the agency under the GIPA Act, requesting

All documents, statements, videos, reports and other literature that has been cited as evidence against my WWCCC application please.

21. The agency received the payment of the application fee on 26 May 2021 and considered that the application was validly made on that date.

22. In response to the access request, the agency identified eight categories of documents within the scope of the access application. Those categories were as follows:

1. Newspaper articles regarding the Royal Commission into Institutional Responses to Child Sexual Abuse’s investigation of the applicant’s alleged conduct,

2. Case Study 41 from the Royal Commission into Institutional Responses to Child Sexual Abuse which relates to sexual abuse of children with disability,

3. Information provided to the agency by the NSW Police Force (NSWPF) Child Abuse and Sex Crimes Squad, pursuant to notices issued by the agency under s 31 of the CP(WWC) Act (the NSWPF material),

4. Information provided by the Department of Communities and Justice (DJC) pursuant to notices issued by the agency under s 31 of the CP(WWC) Act (the DCJ material),

5. Information provided by the South Coast Police District, pursuant to notices issued by the agency under s 31 of the CP(WWC) Act,

6. Information provided by the Disability Trust (a non-government disability service provider), pursuant to notices issued by the agency under s 31 of the CP(WWC) Act,

7. Information provided by the NSW Ombudsman Reportable Conduct Scheme pursuant to notices issued by the agency under s 31 of the CP(WWC) Act, and,

8. Records of telephone calls between the agency and the applicant.

23. On 5 July 2021, the agency notified the applicant of its decision in relation to the access application. In summary, the agency decided:

1. Pursuant to s 58(1)(a) of the GIPA Act, to provide access to some information (categories (d) in part, (e) and (h)),

2. Pursuant to s 58(1)(d) of the GIPA Act, to refuse access to some information (categories (c) and (d) in part) on the basis that there was an overriding public interest against its disclosure, and

3. Pursuant to s 58(1)(c) of the GIPA Act, that some information (categories (a) and (b)) was already available to the applicant on the basis that it was publicly available on a website (s 59(1)(a) of the GIPA Act).

24. The agency also determined that certain information (category (f) and (g) was excluded information within the meaning of clause 2 of Schedule 2 to the GIPA Act and, to the extent that the access application sought access to the excluded information, the access application was not valid by operation of s 43(2) of the GIPA Act.

The reviewable decision

25. On 20 July 2021 (application fee paid 13 August 2021), the applicant applied to the agency for an internal review of its decision of 5 July 2021 pursuant to s 82 of the GIPA Act. The request for review was confined to three pieces of information the subject of the original decision:

1. The NSWPF material,

2. Parts of the DCJ material (that is, the information that was redacted from what was provided to the applicant on 5 July 2021),

3. The information provided by the South Coast Police District (that is, the information that was provided to the applicant on 5 July 2021.

26. On 30 August 2021, the respondent notified the applicant of its decision in relation to the internal review. In short, the agency decided:

1. Pursuant to s 58(1)(d) of the GIPA Act, to refuse to provide access to the NSWPF material and the redacted DCJ material on the basis that there was an overriding public interest against its disclosure, and

2. Pursuant to s 58(1)(c) of the GIPA Act, that the information provided by the South Coast Police District was already available to the applicant (on the basis that it was already provided to him: s 59(1)(d)).

27. In the internal review decision, the agency also noted the following:

Additional information I can provide you with

I acknowledge that these decisions may not provide you with the information you are seeking. In your request for internal review, you noted that you seek this information so you may respond to the proposal to refuse your application for a Working with Children Check (WWCC) clearance. You ask to “be made fully aware of the of the accusation against [you]”.

While the decisions available to me in response to your GIPA application are limited by the provisions of the GIPA Act, I am of the view that the principles of good administrative decision-making mean that as far as possible, you should be made aware of the information relied upon in your WWCC risk assessment. In the interests of making a fair and transparent decision on your WWCC application, I can tell you that the proposed refusal is based on information pertaining to allegations of sexual conduct towards a sole complainant. There are no other allegations detailed in the information that I have decided not to provide you with in response to your GIPA application.

28. I adopt the description of the NSWPF and DJC material set out in paragraphs 46 to 47 of the agency’s submissions dated 26 April 2022, which is set out following:

1. The NSWPF material comprises a covering letter from the NSWPF in response to the s 31 notice, dated 16 September 2020, and copies of two records from the NSWPF Computerised Operational Policing System (COPS) database (Event reference [no redacted]. The records relate to the complaint made to the NSWPF against the applicant in 2012 by a member of the public.

2. The respondent obtained the DCJ material under s 31 of the WWC Act in two stages, on 7 May 2019 and 13 October 2019. The DCJ material comprises a s 31 covering letter dated 7 May 2019, Risk of Serious Harm (ROSH) reports, interviews with the affect child (sic), including Joint Investigative Response Team (JIRT) interviews, and assessments undertaken by DCJ workers.

External review

29. On 20 September 2022, the applicant sought an external review of the internal review decision by the Information Commissioner under s 89 of the GIPA Act. On 13 December 2021 the Information Commissioner decided that the respondent’s decision was justified and did not make any recommendations to the respondent.

30. In the “ground for application” section of his Application Form the applicant explains his reasons for seeking this administrative review as follows:

The OCG is requesting a response from me regarding a proposed refusal to deny a WWCC application (sic). They have outlined their reasons for the proposed refusal which includes multiple references to evidence supplied by an individual who made allegations about me in 2012. I have asked for the release of these reports to me so that I might know full details of the allegations. Their decision to not release this information does not appear to have been conducted in good faith. I am seeking a just and unbiased consideration from the NCAT on the matter so that I would (sic) fair opportunity to build a case in my own defence and to respond to the proposed refusal.

The evidence relied upon by the agency

31. In her Affidavit dated 26 April 2022, Detective Sergeant Byrne-Hickman states:

…

1 I am a Detective Sergeant of the NSW Police Force (“NSWPF”). I am currently the Team Leader of the Child Abuse Squad Illawarra. My duties include the overall supervision of 11 Detectives within the squad and the overall supervision of all investigations. I have investigated over 600 cases of child abuse. These cases predominantly involved child sexual abuse.

…

3 The evidence I give is based on my extensive experience in the investigation of matters involving allegations of sexual assault, including against children. Where stated, it is also based on my review of the NSWPF’s files

…

7 In my experience, complainants in sexual assault matters and, in particular, victims who are children, face complex emotional obstacles when deciding to come forward and participate in an investigation. Participation in an investigation is often traumatic, as it forces the victim to recall the assault in minute detail. It is often painful and uncomfortable for victims to talk about the assault with Police officers. Victims often express feelings of embarrassment, shame, guilt and vulnerability.

8 In order to manage and mitigate these feelings and concerns, the victim is made to understand that their statement and contact details will not be released and the information they provide will not be openly discussed with people outside the investigative team, except to the extent necessary to progress the investigation.

9 When the victim is a child, this process can be particularly complex because the child may not understand the concept of confidentiality. In these circumstances, Police will seek to explain concepts such as confidentiality to the victim using terminology that the child can understand. This process is even more complex in circumstances where the victim is a child with disability. Depending on the extent of the disability, the child may be unable to understand the concept of confidentiality and may be unable to consent to release of their personal information. A child victim with disability is particularly vulnerable and the challenges described above will be more acute.

10 Additionally, parents of a child victim, particularly a child victim with disability, are likely to have real concerns about the confidentiality of the child’s statement, contact details and responses to interview questions and how this information may be used. In order to manage and mitigate the parent’s feelings and concerns, the parents will also be made to understand that the child’s statement, contact details and responses to interview questions will not be released and the information they provide will not be openly discussed with people outside the investigation team, except to the extent necessary to progress the investigation.

11 Access restrictions are applied to case files dealing with allegations of sexual assault in the Computerised Operational Policing System (“COPS”). Where information is gathered from complainants, whether by way of statement or recorded interview, and is uploaded to COPS in a sexual offence matter, it will be tagged as a “sensitive” case file. This further restricts access to the case file, and access will not be granted unless a person has a “Reason for Access”.

Effect of releasing statements

Impact of future supply of information

12 The material provided to the OCG by the Child Abuse & Sex Crimes Squad in response to the s. 31 notice, and the information contained in the JIRT interviews, is information about an alleged sexual assault. This information contains personal information and details of the alleged victim of the assault, who is a child. It is my view that if the OCG was to provide access to information of this nature, in response to applications under the GIPA Act, this would prejudice the supply of similar information to the NSWPF in the future.

13 I have personally experienced that it can be difficult to obtain the cooperation and trust of complainants, victims and witnesses in sexual assault matters… I have dealt with victims who were reluctant to speak to Police because of feelings of shame and embarrassment at sharing such intimate and personal details with a stranger. I have also dealt with victims who feared reprisals from, or the breakdown of relations between, a family or community groups …

14 In relation to allegations involving child complainants or child victims, and particularly in relation to allegations involving victims with disability, building a relationship of trust between Police and the child is of vital importance. This is because children are the most vulnerable group in our community and often (as here) the persons against whom complaints are made are known to the child. Children with disabilities are even more vulnerable. … In my view, part of the child victim’s safety and wellbeing is that child’s anonymity. I have experienced circumstances where a breakdown of trust between the Police and a victim has been detrimental to the investigation and the wellbeing of the victim.

15 As part of building this relationship with a complainant or victim, the Police need to be able to assure the complainant or victim that any information they provide will be kept confidential in order the gain their trust and cooperation. The release of information obtained from a complainant, other than in the context of criminal proceedings (in which case, statutory protections are engaged), would be a breach of the confidentiality promised to the complainant or victim.

16 If Police could not assure complainants or victims that information provided by them will be kept confidential, it is my view that may complainants and victims would be reluctant to speak with Police. In light of the complex emotional obstacles which already face victims, and in particular child victims, of sexual offences, any concern that Police will not respect their confidentiality would be likely to operate as a powerful disincentive in reporting the offence. This would significantly undermine Police’s ability to investigate sexual offences.

17 Police also need to consider the feelings of the child victim’s parents. If Police were to release personal information of a child to others within the community without the consent of their parent, this would erode trust in the Police…

18 Any reduction in the number of complaints made to Police, or in the willingness of complainants or victims to cooperate with an investigation, would negatively impact the ability of Police to exercise their investigative and law enforcement functions.

Reprisals and harassment

19 Records of interview with complainants and victims usually contain a significant amount of personal information about the complainant, the alleged offender, and potential witnesses or other persons of interest.

20 On the basis of my significant experience in investigating sexual offences, I am also concerned that release of information of the nature requested by the applicant would significantly increase the risk of harm to persons so identified. For example, complainants, victims or potential witnesses may be harassed or assaulted, which may affect their willingness to cooperate with Police.

21 All of the above facts need to be considered when releasing information to members of the public. Once information has been released into the public arena, it cannot be controlled. If sensitive Police information, such as statements and records of JIRT interviews, was provided to alleged perpetrators for reasons other than the need to give evidence in criminal proceedings, complainants would feel the trust they placed in Police had been breached. This would have adverse consequences for the continued cooperation of existing and future complainants with Police.

32. In her Affidavit dated 2 June 2022, Detective Sergeant Byrne-Hickman states:

…

Clarification of statement dated 26 April 2022

1. Throughout my statement dated 26 April 2022, I used the word “victim” as a generic term to refer to a person, including a child, who has allegedly been the subject of sexual abuse.

..

1. By my use of the word “victim” in my statement stated 26 April 2022, I did not intend to limit my evidence to only those circumstances in which allegations of sexual abuse have been proven. Rather I had intended to use the word “victim” to describe a person who is now more commonly described by members of the NSWPF as a “complainant” in the investigation of matters involving allegations of sexual assault.

   33. In his Affidavit dated 26 April 2022 Mr Mills states the following:

…

1. I am the Manager, Assessment and Review, of the Working with Children Check Operations Directorate within the Office of the Children’s Guardian (“OCG”). I have held this position since 2018. I have been employed at the OCG since June 2012, when the Working with Children Check (“WWCC”) was first implemented …

…

OCG procedures regarding information

1. Section 31 of the Act empowers the Children’s Guardian, by notice in writing to require any person to provide her with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children (“s 31 notice”). A s 31 notice may be given for several reasons, including for the purposes of determining an application for a WWCC clearance or undertaking an assessment of an applicant or holder of a clearance.

…

1. The OCG has developed standard templates for s 31 notices. In my experience, I have seen that many agencies also have standard templates as part of their response and will provide the information to the OCG under a covering letter indicating that the information is sensitive and confidential.

2. Once received, the information obtained pursuant to a s 31 notice is securely stored on the OCG’s WWCC system. Only certain persons who have undergone security clearance and with the endorsement of the WWCC Director can access that system. The information is treated as confidential and is not disclosed to any third party. It is generally not released to the person who has applied for the WWCC.

3. However, in order to uphold procedural fairness obligations, during the risk assessment process RAOs will engage in a verbal conversation with the applicant to discuss the material being relied on in the risk assessment, to afford them the opportunity to respond. Moreover, if a matter is to proceed to a proposed refusal (dealt with in s 19 of the Act) and then refusal/cancellation (dealt with in ss 20/23), the information is put to the applicant in written from, in a manner which summarises the reasons why the application is to be refused. This statement of reasons will refer to the documents acquired under s 31 and information contained therein. In doing this, RAOs observe sensitivities around confidentiality and privacy and will restrict the release of information to that which the applicant needs to know in order to provide a response, or be made aware of the reasons for the decision. The statements of reasons are subject to review by a Team Leader and reviewed and signed by the Director. The statements may also be reviewed by myself and members of the OCG General Counsel Directorate.

4. As a matter of practice, the confidentiality of information supplied by members of the public to agencies and then provided to the OCG under a s. 31 notice is maintained, so far as possible. If an applicant for a WWCC seeks to access the actual documentation received under s 31, they are requested to make an application for this information under the Government Information (Public Access) Act 2009 either via the OCG General Counsel Directorate or directly from the agency who provided the information to OCG.

5. I would be concerned if these measures were not observed and sensitive information obtained pursuant to a s 31 notice was released to an applicant for a WWCC. I have particular concerns in relation to the release of information provided to the OCG by the NSW Police Force (“NSWPF”) and the Department of Communities and Justice (“DCJ”) under s 31 of the Act.

…

1. In [FLF’s] case, and in risk assessments generally, material provided by the NSWPF and DCJ under s. 31 is provided to the OCG under a covering letter indicating that the information is sensitive and should be treated confidentially. …

2. Information provided by NSWPF usually contains a statement that the information is classified as “Sensitive”, should be handled and stored in accordance with this classification and should not be released except as required by law. In my experience, the information provided by NSWPF is generally very sensitive material. It often relates to police intelligence or investigations that have not been finalised and which could be re-opened at any time.

3. Information provided by DJC includes a request that the information be treated in strict confidence, and any request for the information by a third party should be emailed to a specified DCJ Information Exchange email address. There is also a notation that the records may contain child at risk of harm reports that have not been screened for reporter’s details in accordance with s 29(1)(e) of the Children and Young Persons (Care and Protection) Act 1998. DCJ have very strict policies about the disclosure of their information. Some of these policies are in place because of the statutory non-disclosure provision in s 29 of the Children and Young Persons (Care and Protection) Act 1998. My understanding of the purpose of the measures taken by DCJ is to encourage members of the community to report concerns or allegations regarding children with the assurance that they can do so confidentially.

4. The OCG relies on information provided by frontline agencies such as the NSWPF and DCJ to conduct risk assessments. If measures to protect this information were not upheld, and if this in turn affected members of the community’s willingness to report information due to fears of privacy breaches or breaches of confidentiality, this would ultimately negatively impact the type of information frontline agencies are willing or able to disclose to the OCG. This in turn could have a detrimental impact on the quality of the risk assessments conducted by the WWCC, the purpose of which is to protect children. The functioning of the WWCC relies on the sensitive handling of the information received from other agencies.

…

Jurisdiction

34. By operation of section 9 of the ADR Act, section 100 of the GIPA Act confers jurisdiction on the Tribunal to conduct administrative review under the ADR Act of “reviewable decisions” made by “an agency” as these are identified under section 80 of the GIPA Act. A decision to refuse to provide access to information in response to an access application is a reviewable decision by operation of s 80(d) of the Act. In this respect there is no issue that the agency is “an agency” for the purposes of the GIPA Act, it being a “public office” within the meaning paragraph (d) of the definition of “agency” found in section 4(1) and Schedule 4(1) and clause 3(1)(a) of Schedule 4 of the GIPA Act.

Applicable law

The Tribunal’s role in an administrative review

35. In determining an application for administrative review under the ADR Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: s 63(1). For this purpose, the Tribunal may exercise all the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2). The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3).

36. A “correct” decision is one that is rightly made, while preferable is apt to refer to a decision involving discretionary considerations: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 at [140] per Kiefel J.

The GIPA legislative scheme

37. The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states:

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 release of government information by agencies, and

   (b)    by 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.

   38. This object is amplified with a statutory command, contained in section 3(2), which provides:

1. 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 possible cost, access to government information.

   39. Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information:

2. Presumption in favour of disclosure of Government Information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

40. Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1):

1. Access applications

2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4(Access applications) unless there is an overriding public interest against disclosure of the information.

…

41. Part 2, Division 2, of the GIPA Act concerns the public interest considerations that are associated with access to government information. Section 12 in that Division provides:

1. Public interest considerations in favour of disclosure

2. There is a general public interest in favour of the disclosure of government information.

3. 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.

…

(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.

…

42. Section 13 contains the “public interest test” for determining if there is an overriding public interest against disclosure. It provides:

1. Public interest test

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.

43. Section 14 contains public interest considerations against disclosure. It provides:

1. Public interest considerations against disclosure

2. It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in schedule 1.

3. The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information.

   44. The Table 14(2) considerations that the agency considers are relevant in these proceedings are:

4. Responsible and effective government: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally –

…

(d)   prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

…

(f)   prejudice the effective exercise by an agency of the agency’s functions,

(g)   result in the disclosure of information provided to an agency in confidence,

…

…

1. Individual rights, judicial processes and natural justice: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -

   (a)   reveal an individual’s personal information,

   (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 …,

   45. Section 15 sets out the principles that apply to the determination of the public interest. It provides:

2. 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 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.

46. In Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [24]-[25], the Appeal Panel explained the approach to determining whether there is an overriding public interest against disclosure as a two-step process. The agency case for refusal must rely on one or more of the s 14 considerations. In so as the considerations in the Table to s 14 are engaged, the Tribunal’s task is then to weigh that case against the factors favouring disclosure mindful of the injunctions that appear in both ss 12 and 15.

47. Part 4, Division 3 of the Act sets out the process according to which an agency is to deal with an access application. Section 55 in that Division provides that 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 personal factors related to the application into account. It provides:

1. Consideration of personal factors of application

2. 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.

3. The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

4. The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’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 (but not clause 1, 6 or 7) of the Table to section 14.

5. The applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

…

1. An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

   48. Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides:

2. How applications are decided

3. 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,

   …

   49. Section 105(1) of the GIPA Act provides that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.

   50. Section 107 prescribes the procedure according to which the Tribunal is to deal with public interest considerations. It relevantly provides:

4. Procedure for dealing with public interest considerations

5. 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 overrising public interest against disclosure.

…

Contentions of the parties

Agency

51. The agency contends that its decision to refuse access to the NSWPF material and the redacted DCJ material is the correct and preferable decision. In relation to the DCJ material, the agency submits that there is a conclusive presumption of an overriding public interest against its disclosure or, in the alternative, that there is an overriding public interest against disclosure its disclosure. In relation to the NSWPF material the agency submits that there is an overriding public interest against disclosure.

Applicant

52. The applicant has not framed his submissions, or the presentation of his case, squarely in terms of the provisions of the GIPA Act. However, I understand his case to be that there is a public interest in the disclosure of the DCJ and NSWPF material because it is necessary for him to be able to fairly respond to the agency’s Notice of Proposal Refusal of a WWCC. He expresses concern that the risk assessment process has been conducted on the basis that he is guilty of the conduct of which he has been accused, which is evident from Detective Sergeant Byrne-Hickman’s use of the word ‘victim’ to describe the complainant. In this respect, he contends it has been conducted in “bad faith”. He challenges Detective Sergeant Byrne-Hickman’s and Mr Mills’ evidence that release of the NSWPF and DJC information would discourage others from making reports of sexual assault and child sexual assault on the basis that this is just opinion not supported by objective evidence. He submits that there is no risk that release of this information to him would result in him attempting to contact the complainant or his close associates and engaging in any act of reprisal.

Consideration

The DCJ material

53. Clause 10 of Schedule 1 to the GIPA Act provides:

1. Care and protection of children

It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection Act) 1998 applies.

54. Section 29 of the CYP(CP) Act relevantly provides:

1. Protection of persons who make reports or provide certain information

2. If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons –

   …

   (d)   the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings) –

   (i)   care proceedings in the Children’s Court,

   (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,

   (iii)   proceedings in relation to a child or young person before the Supreme Court of the Civil and Administrative Tribunal,

   (iv)   proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims’ Rights and Support Act 2013,

   (v) proceedings under the Coroners Act 2009, and

   (e)   a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and

   (f)   the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with –

   (i)   the consent of the person who made the report, or

   (ii)   the leave of a court or other body before which proceedings relating to the report are conducted,

   and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.

(1A)   A certificate purporting to be signed by the Secretary that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.

…

(3A)   The protections given by this section to a person who makes a report apply to –

(a)   any person who provided information on the basis of which the report was made, in good faith, to the person, and

(b)   any person who otherwise was in good faith concerned in making such a report or causing such a report to be made,

in the same way as they apply in respect of the person who actually made the report.

…

1. In this section –

Report includes a report under sections 24, 25, 27, 120, 121, and 122.

55. In this matter it is section 24 of the CYP(CP) Act that is relevant. It provides:

1. Report concerning child or young person at risk of significant harm

A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Secretary.

56. The agency has filed a Certificate pursuant to section 29(1A), Children and Young Persons (Care and Protection) Act 1998 (NSW) issued by the delegate of the Secretary of the NSW Department of Communities and Justice on 29 April 2022 which includes the following statement:

[the delegate] has reviewed the following documents in the un-redacted format and with redactions, for the purposes of proceedings in the matter of [FLF] v Office of the Children’s Guardian …

• Child protection records originally downloaded from DCJ’s child protection records database (KiDS), which were the subject of consultation from the Office of the Children’s Guardian in accordance with s 54 of the Government Information (Public Access) Act 2009.

This is to certify that the following pages were partially redacted from the above-named documents, as they relate to reports to which s 29 of the Children and Young Persons (Care and Protection) Act 1998 applies

• Pages 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 32, 38, 47, 49, 51, 53, 55 and 57

57. I note that the page numbering in the redacted and non-redacted version of the DCJ materials is different. I will refer use the non-redacted page numbers and where necessary indicate which pages these are in the redacted version.

58. The agency submits that the s 29(1A) certificate is sufficient proof of the fact that the DCJ material is subject to the conclusive presumption in clause 10 of Schedule 1 of the Act. Two observations must be made in relation to this submission.

59. First, it will only be so if there is no evidence to the contrary. In my view this requires me to examine the non-redacted documents to satisfy myself that they are documents to which s 29 applies: Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13 at [41]. The Tribunal bears such an onus because the applicant is obviously inhibited from doing so because he has received a redacted version of these documents. However, this is a relatively abstract analysis that only requires the Tribunal to be satisfied that the documents have the characteristics of a report to which s 29 applies: Dewhirst at [38] applying Camilleri at [29] by analogy.

60. Second, the Certificate can only apply to those pages of the DCJ material to which it refers. It thus does not apply to pages 7, 8, 20, 22-30, 33-37, 39, 41, 43, 45, 46, 48, 50, 54, 56, 58, 60, 62, and 64.

61. My examination of the DJC documents referred to in the s 29(1A) Certificate satisfies me that they have the characteristics of a report within the meaning of s 24 of the CYP(CP) Act. There is no evidence or submission to the contrary, save perhaps that it may be an implication of the applicant’s submissions that the report(s) were not made in good faith, which is necessary to attract the operation of s 29. However, in conducting an administrative review of a decision made under the GIPA Act, the Tribunal is not in the position to determine in any primary way if a report was made in good faith. It could only have regard to such a determination made by a Court or other authority with competent jurisdiction: Dewhirst at 41.

62. In arriving at this conclusion, I am satisfied that the term “report” should be given a wide meaning consistent with her Honour, Fullerton J’s reasoning in Director General, Department of Family and Community Services v FEW [2013] NSWSC 1448 at [at 13-14] and 17-19]. It includes not only the original risk of harm report(s), but also to records produced during and following investigation and assessment of the report(s) which refer to or repeat the terms of the primary report of harm.

63. Turning to those pages not included in the s 29(1A) Certificate, pages 7 and 8 (pages 14 and 15 in the redacted version) are a “Person Summary” for FLF which redacts the name of a person who provided a s 24 report. I am satisfied that this document is derivative of the risk of harm report and attracts the operation of s 29. Page 20 (page 27 of the redacted version) is the second page of an Assessment Record, the first page of which is incorporated into the s 29(1A) Certificate. It is therefore not apparent to me why the second page was not. In any event, it is an assessment record which refers to the primary report of harm and therefore attracts the operation of s 29. Pages 22-24 (pages 29 to 31 in the redacted version) is a File Note Record of an interview conducted as part of the investigation of the s 24 report. It refers to and repeats the s 24 report. It therefore attracts the operation of s 29. Page 25 to 30 (pages 32 to 37 in the redacted version) is also a File Note Record of an interview untaken in the investigation of the s 24 report. It therefore attracts the operation of s 19. Page 31 (page 38 in the redacted version) is a File Note Record of information obtained in the investigation of the s 24 report, to which it refers. It therefore attracts the operation of s 19.

64. Page 34 (page 41 in the redacted version) is the third page of an Assessment Record made in relation an assessment of the s 24 report. The first page of that Assessment Report (page 32 (39 in the redacted version)) is the subject of the s 29(1A) Certificate. It is thus not clear why the s 29(1A) Certificate applies to page 32 but not page 34. In any event, the Assessment Report refers to the s 24 report and it thus attracts the operation of s 29. Pages 36, 39, 40, 41, and 42 (pages 43, 46, 47, and 48 in the redacted version) are from the same document as page 38. Again, it is thus not clear why the s 29(1A) Certificate applies to page 38 but not these other pages. In any event, the document is a Secondary Assessment Stage 2 which refers to the s 24 report. It clearly attracts the operation of s 29. Pages 43 to 45 (50 and 51 in the redacted version) is in the form of a minute or report for a Debriefing Meeting conducted following an interview conducted in relation to the s 24 report. It refers to and repeats the s 24 report. It thus attracts the operation of s 29. Page 46 (page 53 in the redacted version) is a File Note made at the conclusion of the assessment and investigation of the s 24 report. It refers to the s 24 report and thus attracts the operation of s 29. Pages 60, 62 and 64 of the redacted version (they are not included in the non-redacted version), are from the same document as pages 47, 49, 51, 53, 55 and 57 which are subject to the s. 29(1A) Certificate. It is an Assessment Report that refers to the s 24 report. It thus attracts the operation of s 29.

147. In weighing these competing interests in the balance, with respect to the personal factors of the application, I note that while access to the form of the NSWPF information has been refused by the agency, the substance of the allegations contained in that information has been disclosed to the applicant in detail in the section of the s 19 Notice of Proposal Refused of WWCC Application headed “[e]vents relevant to the assessment”. It is unnecessary to traverse here the detail of what is set out there.

148. The applicant has also been notified of the limit to the subject matter of the information to which access has been refused (which includes the NSWPF information) in the internal review outcome under the heading “[a]dditional information I can provide you with”. In summary, it is stated there that the proposed refusal pertains to allegations of sexual conduct towards a sole complainant.

149. The applicant also has available to him, as does any other member of the public, the Case Study 41 materials of the Royal Commission into Institutional Responses to Child Sexual Abuse that are relevant to him.

150. Having regard to these matters, I am satisfied that the applicant is reasonably able to respond to the s 19 Notice of Proposed Refusal of his application for a WWC Clearance without being granted access to the form of the NSWPF information (that is, the documents themselves). It does not give rise to procedural unfairness to because there is no practical injustice: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2002) 225 CLR 88; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6.

151. I thus conclude that despite the compelling personal factors of the application, the overriding public interest in NSW Police Force being able to receive complaints of sexual assault, including child sexual assault, on a confidential basis, and build trust and cooperation with complainants, close associates, and witnesses through confidential communications, must prevail to prevent the disclosure of such information in response to a GIPA access application. As I have stated above, this is a conclusion reached on the basis that the release of such information could reasonably be expected to discourage the reporting of sexual assault allegations at the systemic level. It is not a conclusion reached in relation to the complainant or his associates in this case.

Conclusion

154. The applicant’s access to the DCJ material must be refused because, pursuant to s 14(1) and clause 10 of Schedule 1 of the Act, there is a conclusive presumption that there is an overriding public interest against its disclosure. It is information to which s 29 CYP(CP) Act applies. His access to the Police material must be refused because pursuant to s 14(2) and clauses 1(d) and 1(f) of the Table to s 14 of the Act there is an overriding public interest against disclosure of this information which outweighs the statutory considerations in favour of its disclosure, and the personal aspects of the application.

Orders

155. For the foregoing reasons:

1. The decision under review is affirmed.

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: 07 December 2022