Higgins v Commissioner of Police, New South Wales Police Force

[2025] NSWCATAD 223

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Higgins v Commissioner of Police, New South Wales Police Force [2025] NSWCATAD 223
Hearing dates:	14 July 2025
Date of orders:	04 September 2025
Decision date:	04 September 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	EA MacIntyre, Senior Member
Decision:	The Respondent’s decision that the Applicant is given access to the Body-Worn-Video footage taken on 9 April 2023 pursuant to s 72(1)(c) is affirmed.
Catchwords:	ADMINISTRATIVE LAW - administrative review -access to government information - correct and preferable decision - whether the public interest consideration against disclosure, on balance outweighs the public interest consideration in favour of disclosure - whether there is an overriding public interest against disclosure of information - reasonable expectation of contravention of a provision of any other Act or statutory rule - prejudice to effective exercise of an agency’s functions - individual’s personal information - secrecy
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Surveillance Devices Act 2007 (NSW) Freedom of Information Act 1982 (Cth)
Cases Cited:	FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120 Higgins v Commissioner of Police, NSW Police Force [2024] NSWCATAD 175 Higgins v Commissioner of Police, New South Wales Police Force [2025] NSWCATAP 31 Howell v Macquarie University [2007] NSWADTAP 10 Re JRL; Ex parte CJL (1986) 161 CLR 342 Morgan v Commissioner of Police [2021] NSWCATAD 173
Texts Cited:	None Cited
Category:	Principal judgment
Parties:	Andrew Higgins (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Self represented (Applicant) Crown Solicitor (Respondent)
File Number(s):	2023/00443247
Publication restriction:	Nil

REASONS FOR DECISION

Introduction

1. The Applicant had sought access to certain Body-Worn-Video (“BWV”) footage taken by the Respondent on 9 April 2023. The Respondent made a decision allowing “view only” access pursuant to s 72(1)(c) of the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”).

2. The circumstances were that a police officer had stopped the Applicant while he was driving down the Hume Highway to the ACT. The police officer said that he found a non-compliant car seat being used by a child and had then directed the Applicant to drive to Gundagai while being escorted by the police officer. The Applicant had then driven alone to Wagga Wagga, acquired a new car seat, fixed it and then resumed his journey. The Applicant sought the BWV footage recording his interactions with the police officer.

3. The Civil and Administrative Tribunal (“Tribunal”) on 10 May 2024 made an order affirming the decision of the Respondent to give “view only” access and refuse to give the Applicant the file containing the BWV footage. That decision is found at Higgins v Commissioner of Police, NSW Police Force [2024] NSWCATAD 175 (“2024 Decision”).

4. The Applicant then appealed from the decision of the Tribunal to the Appeal Panel.

5. The Appeal Panel on 13 February 2025 set aside the order affirming the Respondent’s decision not to give the Applicant the file containing the BWV footage. It made an order for reconsideration by the Tribunal of the Applicant’s application for access to the BWV footage (Higgins v Commissioner of Police, New South Wales Police Force [2025] NSWCATAP 31).

6. These proceedings are for the reconsideration of the Applicant’s application for access to the BWV footage.

Appeal Panel Decision

7. The Appeal Panel said that its understanding of the Applicant’s evidence and submissions to the Tribunal below was that the police officer had no legal or other basis to direct him to drive to Gundagai and, if that is the case, the Tribunal should have inferred that the police officer was acting “irregularly” in doing so.

8. In those circumstances, the Appeal Panel understood the Applicant’s submission to be that disclosure of the relevant information could reasonably be expected to “provide an opportunity for public debate as to the circumstances in which police officers should be permitted and encouraged to act as the police officer did in my case”. The Appeal Panel referred to this consideration as the “public debate consideration”.

9. The public debate consideration was described as one that included questions of whether the police officer’s conduct had been lawful. The Appeal Panel referred to a relevant example of a public interest in favour of disclosure of information, that:

“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”.

10. The Appeal Panel did not consider the lawfulness, propriety or irregularity of the police officer’s conduct to be a material question of fact or make findings of fact about these matters. The Appeal Panel said that to be satisfied that in a particular case this example is a public interest consideration in favour of disclosure, the decision maker is not required to decide whether a person has engaged in “misconduct or negligent, improper or unlawful conduct”. All that is required is that disclosure “could reasonably be expected to reveal or substantiate” that an agency has engaged in such conduct.

11. Similarly, the Appeal Panel said that the following example in the note to s 12 of the GIPA Act does not require the decision maker to make any factual findings before drawing an inference that “[D]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.”

12. The way in which these public interest considerations in favour of disclosure were framed, in the view of the Appeal Panel, supported the conclusion reached by the Tribunal in Howell v Macquarie University [2007] NSWADTAP 10, at [91] that the Tribunal need not engage in a “satellite factual inquiry” about allegations such as misconduct by third parties or the veracity of the information itself:

“Ground 6 is that the Tribunal, in its cl 9 inquiry, failed to determine facts essential to its determination of the question whether the release of the document was contrary to the public interest, specifically by ‘failing to determine whether the statements in the document about the appellant were erroneous, as the appellant’s uncontradicted evidence asserted’; and by failing to determine ‘whether the ‘direction’ issued in accordance with the instruction contained in the document was unlawful, as the appellant submitted. These grounds of appeal are misconceived. The Tribunal did not have go to this far in considering the public interest issue. It remains a matter for the Tribunal to judge whether it was appropriate for it to get involved in a satellite factual inquiry”.

13. The Appeal Panel said, at [50]:

“In this case the Appellant asserted that the police officer’s conduct was “irregular”. That was not a finding the Tribunal needed to make before determining whether the public debate issue was a public interest consideration in favour of disclosure. All the Tribunal needed to determine was whether the issue was of interest to the public because it was about the welfare of the public or the community as a whole. The reasons are not inadequate because the Tribunal failed to make a finding on a material question of fact”.

14. The Appeal Panel also said, at [52]:

“Another minimum acceptable standard for the Tribunal in this case was to set out “the reasoning processes that lead the Tribunal to the conclusions it made”: NCAT Act, s 62(3)(c). That process involves acknowledging that there is a general public interest in favour of disclosure and then identifying other public interest considerations for and against disclosure. The Tribunal must then decide whether any public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure: GIPA Act, s 13.”.

15. The Appeal Panel went on to say, at [54]:

“The Tribunal’s reasoning process was clear and comprehensive in relation to all the public interest considerations for and against disclosure put forward by the Respondent. But the reasons were not adequate in relation to the “public debate consideration” put forward by the Appellant.

……

The Tribunal’s reasoning process should have included a finding as to whether the “public debate consideration” was a consideration in favour of disclosure. The Tribunal should then have gone on to apply the “public interest test” in s 13 of the GIPA Act to all the considerations for and against disclosure”.

16. The Appeal Panel also said, at [75]:

“This is a case where the Tribunal has not provided adequate reasons - it is not a case where the conclusion it reached is necessarily wrong. Our conclusion justifies setting aside the decision and remitting the whole case for reconsideration by the Tribunal. If the Tribunal decides that there is not an overriding public interest against disclosure of the information in the BWV, copy access will be given. If the Tribunal decides that there is an overriding public interest against providing “copy access” the Tribunal will need to go on to apply the correct legal test to determining whether providing “view access” is the correct and preferable decision. Setting out the Tribunal’s reasoning process and applying the correct law does not require further evidence to be adduced”.

17. The Appeal Panel went on to make the following orders:

1. Leave was granted for the Applicant to appeal on a question other than a question of law.

2. Orders 3 and 4 of the Tribunal’s orders of 27 June 2024 were set aside.

3. Pursuant to s 81(1)(e) of the Civil and Administrative Tribunal Act 2013, the Applicant’s application for access to the Body-Worn-Video (BWV) footage is to be reconsidered by the Tribunal without further evidence.

18. In summary, the Appeal Panel said that the Tribunal must, giving adequate reasons:

1. (1)   make a finding as to whether the “public debate consideration” was a consideration in favour of disclosure; and

2. (2) then to go on to apply the “public interest test” in s 13 of the GIPA Act to all the considerations for and against disclosure.

Submissions and hearing on remittal for reconsideration

19. The parties were given the opportunity to make further written submissions. Both parties did so. The Applicant on 2 April 2025 filed his written submissions (“Applicant’s Submissions”). On 16 April 2025, the Respondent replied (“Respondent’s Reply”). On 8 May 2025, the Applicant filed further submissions in reply to the Respondent (“Applicant’s Further Submissions”).

20. The parties were also afforded the opportunity to make any oral submissions they wished to make at a hearing. That hearing took place on 14 July 2025.

21. At the hearing, I sought and obtained clarification of certain matters arising out of the submissions of the parties made concerning reconsideration by the Tribunal.

22. The Applicant in his submissions of 2 April 2025 said that if the Tribunal had in the 2024 Decision taken account of the public interest consideration, I should consider whether I ought to disqualify myself from reconsideration of the matter “given that a fair-minded observer might reasonably think that the Senior Member might have prejudged the issue” (Applicant’s Submissions, paragraph 12).

23. At the hearing of the matter, the Applicant said that he was not making an application for recusal but only raising the matter as a question I should consider. I will, however, proceed on the basis that the Applicant has made an application for recusal.

24. As a preliminary question, I need to consider and determine the Applicant’s submissions concerning recusal.

Recusal

25. The Applicant has framed the question of recusal in terms of prejudgment of the issue. Prejudgment may give rise to a need for recusal in certain circumstances involving actual bias. Seiden SC DCJ described these circumstances in the following terms in FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120, at [27] - [29]:

“In Jia Legeng, Hayne J noted that bias may be occasioned by an interest in the outcome, by affection or enmity, or by prejudgment: at [183]. His Honour set out several distinct elements underlying the assertion that a judge has prejudged or will prejudge an issue on the basis of an opinion they hold (at [185]):

(1) First, there is a contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.

(2) Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue.

(3) Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case”.

His Honour observed, at [186], that allegations of actual bias through prejudgment often fail at the third step. This is because, notwithstanding whatever preconceived opinions are held or even expressed by the decision-maker, it does not follow that the evidence will be disregarded.

These principles would equally apply to a decision-maker in the Tribunal”.

26. The principles governing recusal on the basis of apprehended rather than actual bias also require consideration. Her Honour described the test for apprehended bias in the following terms, at [30] – [34]:

“The test for whether a judge should disqualify themselves by reason of apprehended bias is the objective “double might” test, that is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 (Johnson) at [11] affirmed in Ebner at [6].

In terms of apprehended bias, the application of this principle requires two steps, as explained in Ebner at [8].

(1) First, it requires the identification of what it is said might lead the judicial officer to decide the case other than on its legal and factual merits.

(2) Second, it is necessary to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

Once those two steps are taken, the reasonableness of the asserted apprehension of bias can be assessed: Ebner at [8].

The “fair-minded lay observer” is a hypothetical member of the public because the principle is concerned with the maintenance of public confidence in the justice system: QYFM at [71] citing Webb v The Queen (1994) 181 CLR 41 at 52; [1994] HCA 30. They are taken to be aware of the legal, statutory and factual context in which the decision is to be made: BW v Secretary, Department of Communities and Justice [2024] NSWSC 1354 at [144] (per Faulkner J) citing Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23]. The reasonableness of the apprehension of the fair-minded lay observer is considered “in the context of ordinary judicial practice”: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [12] citing Johnson at [13]; see also Kirby J's comments in Johnson at [53].

These principles would equally apply to a decision-maker in the Tribunal”.

27. The Applicant made no allegation as to actual bias. However, I will consider the question. Even if it could be inferred that the first and second requirements described by Seiden SC DCJ for actual bias could be satisfied, actual bias also requires that the decision maker will come to a decision without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. I must in other words consider anew the submissions and evidence at first instance and also consider the submissions made by the Applicant (and the Respondent) on remittal before coming to a new decision. The reasons below set out my consideration of the arguments of the Applicant made in his two written submissions (and the submissions of the Respondent in reply), as well as their evidence and submissions at first instance.

28. Consideration of matters of apprehended bias first of all requires the identification of what it is said might lead the judicial officer to decide the case other than on its legal and factual merits. I understand the Applicant’s submission to be that if I had already taken into account the public debate consideration in the weighing exercise required under the GIPA Act, this identifies what might lead me to prejudge the matter. I accept that this may allow for a perception of prejudgment.

29. Secondly, it is necessary to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. No such connection was articulated by the Applicant.

30. No connection of the relevant kind can be assumed to arise merely by reason of remittal of a matter to the original decision maker rather than to a different decision maker. In other words, the second requirement will not be satisfied merely because a question previously before a decision maker and determined by that decision maker is remitted to the same decision maker with nothing more. If it were otherwise, no remittal can ever be made to the original decision maker.

31. Seiden SC DCJ said in FZK, at [58] – [59]:

“As to the second step of the test articulated in Ebner, the only logical connection suggested was that because I have revealed my understanding of s 80 of the NCAT Act and that that same provision is at issue here, it might be feared that I would not decide the present case on its merits.

It does not follow from an expression of my understanding of the law concerning s 80 of the NCAT Act that I would not genuinely consider any legal arguments of the appellant as to why my view was incorrect and then, taking those into account, re-consider my view of the law”.

32. What Her Honour said in FZK is apposite to the present case. The understanding I have revealed in the 2024 Decision of the public interest consideration and any weight I accorded to it as a consequence, does not of itself mean that I would not genuinely consider the arguments put before me on remittal. I am required to revisit the weighing exercise on the basis of the submissions of the parties on remittal, as well as their evidence and submissions at first instance.

33. Judicial officers must discharge their duty to sit and resist acceding too readily to suggestions of appearance of bias, encouraging parties to believe that by seeking the disqualification of a decision-maker they may obtain an outcome more favourable to them (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 (per Gibbs CJ); , FZK, at [19]).

34. For the reasons set out above, I should not disqualify myself. 

Reconsideration

35. The Appeal Panel requires reconsideration by the Tribunal of the Applicant’s application for access to the BWV footage in dispute. The Appeal Panel specifically said that the reasons given had not been adequate in relation to the “public debate consideration” put forward by the Applicant. The Appeal Panel said that the Tribunal’s reasoning process should have included a finding as to whether the “public debate consideration” was a consideration in favour of disclosure of the BWV footage. The Tribunal should then have gone on to apply the “public interest test” in s 13 of the GIPA Act to all the considerations for and against disclosure. This is what I will now go on to do.

Public debate consideration

36. The first question for the Tribunal is to determine whether the “public debate consideration” is a public interest consideration in favour of disclosure. The Applicant framed this consideration in terms of disclosure contributing to a public debate as to the circumstances in which police officers should be permitted and encouraged to act as the police officer did in his case.

36. It is clear that the way in which police officers carry out their functions of law enforcement is a matter of public interest. It should not be a controversial proposition that public debate on how they do so is a public interest consideration that favours disclosure.

37. A particular question framed by the Applicant is “whether there should be powers and policies governing when police provide “assistance” to people who did not request it or consent to it”. The question of how police officers carry out their functions in enforcing rules applicable on the roads, including how they interpret those rules and what powers police should have and what policies should apply, with little doubt, also answers the description of a public interest consideration against disclosure.

38. To say that public debate on any of these matters is a public interest consideration in favour of disclosure should not be controversial, whether framed more broadly in terms of how police powers should be exercised or more narrowly as a question of how they enforce road safety.

39. Having found that the public debate consideration is a public interest consideration in favour of disclosure, the next question for consideration is what weight should be given to the public debate consideration.

40. The Applicant, in support of his case, says that the Tribunal cannot make a finding that the public interest factors against disclosure outweigh the public interest considerations in favour of disclosure without identifying what weight it is giving to the public debate consideration (Applicant’s Submissions, paragraph 6). The Applicant correctly frames the task of the Tribunal. It must first identify the weight attaching to the public debate consideration and having done so, carry out the weighing exercise described by the Applicant.

41. The parties agreed that the public debate consideration involved the question of whether or not the BVW footage could reasonably be expected to reveal or substantiate that the police officer in question had engaged in misconduct or negligent, improper or unlawful conduct.

42. The Appeal Panel said that weighing the public debate consideration understood as such, does not require that the Tribunal make a factual finding that the conduct of the Police Officer in question was negligent, improper or unlawful or was otherwise misconduct. Something less will suffice, namely a finding that the evidence could “reasonably be expected to reveal or substantiate” that he had engaged in such conduct.

43. The Respondent for her part denied that the police officer had “acted unreasonably, illegally or even impolitely”. She also said categorically that he had not acted unlawfully. She said that there was a scheme at law for the enforcement of road safety. I understood the submission to be that the police officer had exercised his powers under that scheme. However, the Respondent made no further submissions elaborating on the matter, such as reference to particular powers conferred by statute, delegated legislation or other laws setting out the powers of the police officer to direct the Applicant as he did.

44. The Applicant, for his part, says that the Respondent neither gave evidence nor disclosed any policies or procedures that would suggest that the police officer’s directions or assistance had a lawful basis. In the absence of such evidence, the Applicant says that the Tribunal should draw an inference that any such evidence would have been unhelpful to the Respondent (Applicant’s Submissions, paragraph 10).

45. The Applicant said that he had made a formal complaint to the Respondent. However, he said he was not submitting that any breach of a statutory obligation had occurred. He also said that he had not commenced any proceedings against the Respondent. He further said that his access application was not based on “the police committing a tort against me” (Applicant’s Submissions, paragraph 14). However, he said in his oral submissions that a claim in tort was in contemplation but did not say whether he would commence such proceedings.

46. The Applicant nevertheless invites the Tribunal to find that the police officer in question engaged in unlawful conduct. He says that this was so “in the sense that there was no lawful basis for the Police Officer’s directions to us as shown in the BWV”. The Tribunal understands the Applicant’s submission to be that the conduct in question was unlawful because there were no statutory powers, policies or procedures that applied to or justified the police officer’s conduct and none were specifically relied upon by the Respondent.

47. To summarise, what is before the Tribunal, on the one hand, is a categorical submission by the Respondent that the police officer had not acted unlawfully. Other than referring generally to the scheme for enforcing road safety, there were no further submissions setting out how that scheme applied to the events of 9 April 2023. The Applicant for his part said that the absence of submissions of this kind and evidence should allow for an inference that the conduct in question was unlawful.

48. I do not think that I can infer that the conduct in question was unlawful merely by reason of the absence of submissions from either party setting out particulars of the legal scheme governing road safety and their application to the facts of the case. This would require ignoring the Respondent’s categorical submission that no breach of law has occurred. I can disregard or place limited weight on a submission of a party if I have reason to think that the party is misleading the Tribunal. I am unable to make a finding that the Respondent has done so, absent sufficient evidence to support such a conclusion or infer such a conclusion.

49. I do not, however, need to find that the police officer acted unlawfully in order to place weight on the public debate consideration. I need only find that the evidence could “reasonably be expected to reveal or substantiate” that the police officer had engaged in “misconduct or negligent, improper or unlawful conduct”.

50. I am unable, however, to make such a finding as regards unlawful conduct, on the submissions and the evidence before me. First of all, there is a categorical denial by the Respondent of unlawful conduct. Secondly, I cannot infer that the evidence could “reasonably be expected to reveal or substantiate” that the police officer had engaged in unlawful conduct, simply by reason of no submissions before me as to the precise workings of the statutory scheme. In doing so, I would have to ignore or place little weight on the Respondent’s categorical submission that there was no unlawful conduct. Thirdly, the Applicant himself says that he is not alleging any breach of a statute nor commenced a claim.

51. The Applicant indicated that a cause of action may lie in tort for false imprisonment. However, he did not make any submissions as to the elements of the cause of action and how in particular, it could be sustained in circumstances where the Respondent says the police officer in question was acting lawfully.

52. It may hypothetically be open for the Tribunal to examine the facts before it and itself come to a conclusion that the evidence could reasonably be expected to reveal or substantiate that the police officer in question had engaged in unlawful conduct. Such a conclusion would require consideration of the statutory scheme and other relevant law governing the enforcement of road safety and the applicable principles under the law of torts. However, it is not for the Tribunal to undertake such an enquiry on its own volition. Doing so and coming to its conclusions without submissions from the parties will fail the requirements of procedural fairness.

53. The requirement is that the relevant disclosure could “reasonably be expected to reveal or substantiate” that an agency (or a member of an agency) has engaged in conduct of the relevant kind. A reasonable expectation requires more than mere speculation or a suspicion that disclosure would reveal or substantiate that relevant conduct occurred. In the absence of material before the Tribunal, whether by way of submissions as to the scheme of law and its application to the facts at hand or sufficient evidence, I am unable to find that disclosure would “reasonably be expected to reveal or substantiate” the relevant conduct.

54. While the Respondent bears the onus of proof, the absence of any submissions or evidence from either party that could assist the Tribunal, leaves insufficient material before the Tribunal to allow me to make such a finding.

55. There was nothing in submissions or the evidence to indicate that the circumstances could “reasonably be expected to reveal or substantiate” that the police officer had engaged in “misconduct” or “negligent” or “improper” conduct. The Applicant said that what he experienced was “irregular”. I consider that submission below.

56. In order to give weight to the public debate consideration, I do not necessarily need to find that the Respondent’s conduct could reasonably be expected to reveal or substantiate that the police officer in question had engaged in misconduct or negligent, improper or unlawful conduct. If the conduct was otherwise of a kind that could be a cause of concern, this may be sufficient to allow significant weight to be given to the public debate consideration.

57. The Applicant’s complaint was that the Respondent’s conduct was “irregular” and that the Applicant and his wife “had never experienced anything like it in Australia or the UK”. He says that “common human experience” would also indicate that the incident was highly “irregular” (Applicant’s Reply, paragraph 7).

58. The Respondent’s explanation of the events of 9 April 2023 was that the Applicant was directed to drive under police escort to Gundagai so that he could obtain a compliant car seat. The Applicant, however, draws a distinction between a fine he was told he would receive for driving with a non-compliant car seat and the direction he was given to drive to Gundagai. He says that the fine was about seeking compliance with child restraint laws but the direction to drive to Gundagai was not (Applicant’s Reply, paragraph 10). He says that “driving up the highway under police lights has nothing to do with seeking to secure compliance with NSW laws (of any type)”. It is the direction to drive to Gundagai and being escorted there that is the impugned conduct the Applicant says was “irregular”.

59. The Applicant was clearly distressed by the circumstances that arose on 9 April 2023, including the distance he had to drive. Driving distances of this kind, where unforeseen circumstances arise, however, is not unusual in country Australia, having regard to the long distances between places. I do not see any “irregularity” simply because of the distance the Applicant drove to reach a town in country Australia, in order to find a compliant car seat for a child.

60. I agree that a direction to drive to a town with no context would be “irregular” at the very least, and may support a conclusion that such conduct is of a kind that may cause concern. However, the evidence is that once the Applicant reached Gundagai, he went to Wagga Wagga, procured a compliant car seat, returned to Gundagai, fixed the new car seat and resumed his journey. I accept, in these circumstances, the Respondent’s explanation of events of the day including the direction for the Applicant to drive to Gundagai. These events concerned compliance with child restraint laws and in particular, allowing the Applicant to secure a compliant car seat and not continue his journey without one.

61. The personal experience of the Applicant is, in my opinion, insufficient to show that there are matters of public concern arising out of how the Respondent polices safety on highways relating to child safety or otherwise. There was no evidence before the Tribunal that there was any wider public concern about how road safety is policed.

62. There was no submissions put to the Tribunal as to whether there were issues of public concern known to be debated in the public space of which the Tribunal should take notice without evidence, such as in Morgan v Commissioner of Police [2021] NSWCATAD 173. In this case, the Tribunal accepted the strong public interest in matters concerning interactions between indigenous people and police (at [69] – [70]) as a matter of which it could take notice.

63. The Respondent frames the “public debate consideration” differently to how the Applicant has done so. The Applicant sets out the question as one concerning the exercise of police powers. The Respondent on the other hand frames the question as one of the “existence and enforcement of road safety rules relating to the proper installation of child car seats”. The Respondent says that this is not a matter of “particular controversy or public debate”. Framed in the above manner, the question goes beyond one of a public debate about how police powers are exercised to ensure road safety. It is specifically about ensuring the correct use of children’s car seats.

64. The BWV footage in issue contains information about how to secure a child’s car seat. It also includes a discussion between the police officer and the Applicant and his wife on the subject.

65. There was no evidence of any public debate about child car seats when travelling on the road. Nor was there any submission made as to whether the Tribunal should take notice of any such matters without the need for evidence. In these circumstances, I do not think that framing the “public debate consideration” as a debate about child car seats can add weight to the public debate consideration.

66. The matters put to the Tribunal by the Applicant going to the public debate consideration, nevertheless carry some weight. The way in which police exercise their powers is a matter of public interest, whether generally or on the road. However, that weight, though carrying some force, can at best be moderate.

67. Had submissions been provided that established some basis in law, going beyond mere suspicion or speculation, for the proposition that the police officer may have acted unlawfully, the public interest consideration would have carried greater weight, if not preponderant weight.

Balancing test

69. At [43] of the 2024 Decision, the Tribunal listed the following public interest considerations in favour of disclosure put forward by the Respondent and accepted by the Tribunal:

“(1) the statutory presumption in favour of disclosure of government information;

(2) the general right of the public to have access to government information held by the agency;

(3) that information is personal information to the Applicant;

(4) disclosure might reasonably be expected to inform members of the public about the operations of the NSW police and in particular its policies and practices in dealing with members of the public”.

70. The following list is a summary of the public interest considerations against disclosure put forward by the Respondent and accepted by the Tribunal:

1. Secrecy provisions - that disclosure of the information could reasonably be expected to constitute a contravention of s 40 of the Surveillance Devices Act 2007 (NSW) (“SDA Act”) which prohibits disclosure of “any information obtained from the use, in accordance with section 50A, of body-worn video by a police officer” (GIPA Act, cl 6 of the Table to s 14).

2. Individual rights - that disclosure of the information could reasonably be expected to “reveal an individual’s personal information” (GIPA Act, cl 3(a) of the Table to s 14).

3. Responsible and effective government: that disclosure of the information could reasonably be expected to “prejudice the effective exercise by an agency of the agency’s functions” (cl1(f) of the Table to s 14).

4. Law enforcement and security: that disclosure of the information could reasonably be expected to “prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law” (cl 2(b) of the Table in s 14).

71. The “secrecy” consideration going against disclosure applies if disclosure of the information by any person could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of NSW or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

72. I allowed considerable weight to the secrecy considerations. Disclosure of information under the GIPA Act resulting in a breach of a secrecy provision, is a serious matter. The Tribunal should not make an order that allows disclosure to produce this result lightly. Parliament could not have intended such an outcome without something of at least countervailing weight to allow disclosure, notwithstanding such a breach, regardless of any curative effect of s 11 of the GIPA Act.

73. I have found that the public debate consideration does not carry significant weight, absent relevant submissions or evidence in support of the proposition that disclosure could reasonably be expected to reveal or substantiate that the police officer engaged in relevant conduct. Evidence of an actual debate about a matter of public concern or some matter of which the Tribunal can take notice may also have lent weight to the public debate consideration. However, I have found that the evidence and submissions did not reveal any relevant matters of this nature.

74. I did not attach much weight to the public debate consideration at first instance. On reconsideration and having heard the Applicant’s submissions, I am of the view that at best moderate weight attaches to the public debate consideration. Some weight also attaches to each of the other public interest considerations for disclosure set out at [69] above, especially the personal information consideration appertaining to the Applicant. I think that the public interest considerations against disclosure together carry moderate weight or slightly more than moderate weight.

75. I am of the view that the weight that all of the public interest considerations in favour of disclosure carry, cannot outweigh the weight attaching to the public interest considerations against disclosure set out at [70] above, including the significant weight that the secrecy consideration carries. The significant weight the secrecy consideration carries, together with the lesser weight carried by the other public interest considerations against disclosure are, in my opinion, preponderant.

76. As a result, the weighing exercise required by s 13 of the GIPA Act, produces the result that the public interest considerations against disclosure of the BWV footage outweigh those in favour of disclosure.

“View only” access

77. The decision of the Respondent was to grant to the Applicant “view only” access of the BWV footage. The weight of the public interest considerations in favour of disclosure set out at [69] above, in my opinion, operate in favour of allowing “view only” access.

78. I think that the secrecy consideration carries less weight than it does in relation to provision of “copy access” to the BWV footage, when balancing the competing considerations for and against disclosure of the BWV footage on a “view only” basis. This is because “view only” access does not allow the Applicant to “publish” the BWV footage and by doing so, give rise to a breach of s 40 of the SD Act, even if the Applicant were to “use” the information he views for his own purposes. This is a matter that reduces the weight that attaches to the secrecy consideration in determining whether or not “view only” access should be allowed. That consideration however carries some weight. Each of the other public interest considerations against disclosure set out at [70] above carry lesser weight.

77. Greater weight attaches to the public interest considerations in favour of disclosure set out at [69] above together with the public debate consideration, than that attaching to those against set out at [70], in deciding whether or not “view only” access should be granted. Most weight attaches to the consideration that the information is personal to the Applicant but some weight also applies to the other public interest considerations in favour of disclosure.

78. Granting view only access to the BWV footage is the correct and preferable decision.

Orders

1. (1) The Respondent’s decision that the Applicant is given access to the Body-Worn-Video footage taken on 9 April 2023 pursuant to s 72(1)(c) is affirmed.

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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

Amendments

05 September 2025 - Paragraph 69 - Words added after the Respondent 'and accepted by the Tribunal:'

Paragraph 70 - Words added after the Respondent 'and accepted by the Tribunal:'

Decision last updated: 05 September 2025