Rapisarda v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force; Sheehy v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 34

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Rapisarda v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force; Sheehy v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force [2018] NSWCATAD 34

Hearing dates:

14 December 2017

Date of orders:

08 February 2018

Decision date:

08 February 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

DAC Robertson, Senior Member
Dr M Murray, General Member

Decision:

1 Application for non-publication orders dismissed.
2 Subject to further order, these reasons for decision are not to be released to the public until 7 days after they have been provided to the parties.

Catchwords:

PROCEDURE – Miscellaneous procedure matters – s 64 Civil and Administrative Tribunal Act – non-publication order in respect of documents relating to Police internal investigations – grounds for non-publication – whether disclosure not in the public interest –maintaining integrity of police investigations – whether real risk if non-publication order refused – relevance of other proceedings under Government Information (Public Access) Act in relation to classes of documents including documents in question

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW) s 75
Civil and Administrative Tribunal Act 2013 (NSW) s 49, s 64
Civil and Administrative Tribunal Rules 2014 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Police Act 1990 (NSW) s170

Cases Cited:

Applicants v Commissioner of Police [2015] NSWCATAD 22
Brennan v State of New South Wales [2006] NSWSC 167
Brennan v State of New South Wales [2006] NSWSC 275
CCB v Department of Education and Communities [2015] NSWCATAD 145
Commissioner of Police, New South Wales v Nationwide News Pty Ltd (2007) 70 NSWLR 643
CVV v United Resource Management Pty Ltd [2016] NSWCATAD 271
CYL v YZA [2007] NSWCATAP 105
Da Silva v R (No 2) [2012] NSWCCA 106
Diri v Board of Studies Teaching and Education Standards [2014] NSWCATAD 222
Mao v The Cth [2012] NSWSC 370
McCausland v State of New South Wales [2010] NSWSC 1562
R v Mentuck (2001) 3 SCR 442
State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Category:

Procedural and other rulings

Parties:

Proceedings 2017/100954;
Steven Rapisarda (Applicant)
Commissioner of Police, NSW Police Service (Respondent)

Proceedings 2017/100988;
Shane Housego (Applicant)
Commissioner of Police, NSW Police Service (Respondent)

Proceedings 2017/101011
Christopher Sheehy (Applicant)
Commissioner of Police, NSW Police Service (Respondent)

Proceedings 2017/101021
Christian McDonald (Applicant)
Commissioner of Police, NSW Police Service (Respondent)

Representation:

Counsel:
Mr Fernon SC (Respondent)

  Dowson Turco Lawyers Pty Ltd (Applicants)
K&L Gates (Respondent)

File Number(s):

2017/100954; 2017/100988; 2017/101011, 2017/101021

Publication restriction:

Subject to further order, these reasons for decision are not to be released to the public until 7 days after they have been provided to the parties.

REASONS FOR DECISION   

1. These proceedings are part heard before the Tribunal, there have been six days of evidence and the matter is adjourned for submissions in February 2018.

2. On 26 October 2017 the solicitors for the respondent (the Commissioner) wrote to the Registrar of the Tribunal indicating an intention to seek non-publication orders pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) in respect of Exhibits 20, 21 and 22 which were tendered on the fifth day of hearing.

3. Section 64(1)(c) of the NCAT Act provides:

64 Tribunal may restrict disclosures concerning proceedings

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

…

(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,

4. The Commissioner brought his application orally on 21 November 2017, the sixth day of the hearing. In order to ensure that the evidence concluded on that date, the Tribunal indicated it would not hear argument on the application at that time but would not make any orders granting media or public access to those exhibits until the application had been determined.

5. The Commissioner also sought non-publication orders in respect of the oral evidence given by Detective Senior Constable Martin Kiernan on 21 November 2017.

6. The hearing of the application by the Commissioner for non-publication orders, among other matters, was fixed for 14 December 2017. At that time the transcript of Detective Senior Constable Kiernan’s evidence was not available and the Tribunal indicated it would defer consideration of non-publication orders in respect of Detective Senior Constable Kiernan’s evidence until such time as the transcript became available. Again, the transcript will not be made available generally to the media or to the public generally until the Commissioner’s application for non-publication orders in respect of that transcript has been heard and determined.

7. Exhibits 20, 21 and 22 are documents produced by Detective Sergeant Volpe. The exhibits were documents brought into existence by Detective Sergeant Volpe in the course of an investigation into an allegation against one of the applicants, Constable Sheehy, being that he had engaged in conduct contrary to the Surveillance Devices Act 2007 (NSW). Exhibit 20 was Detective Sergeant Volpe’s “Investigation Log” recording steps he had taken in the course of the investigation. Exhibit 21 was his “Investigation Plan” setting out the allegations against Constable Sheehy and his proposed strategy for the investigation. Exhibit 22 was the formal “Investigation Report” recording Detective Sergeant Volpe’s finding that the allegation was not sustained and the evidence upon which that finding was based.

8. By virtue of s170 of the Police Act 1990 (NSW) documents brought into existence in the course of police internal investigations under Part 8A of the Police Act are not admissible in evidence in any proceedings, save in limited circumstances one of which is that a witness voluntarily produces a document. Because Detective Sergeant Volpe voluntarily produced the documents, they were admissible and able to be admitted into evidence notwithstanding s170 of the Police Act.

9. The Commissioner put forward two “principal grounds” why Exhibits 20, 21 and 22 should be the subject of non-publication orders. They were:

“(a)   There is a recognised public interest immunity in evidence that discloses NSW Police Force methodology, which warrants protection through non-publication orders; and

(b) The disclosure of the evidence in Exhibits 20, 21 and 22 irreparably prejudices the Respondent in the concurrent proceedings before the Tribunal under the GIPA Act [Government Information (Public Access) Act 2009 (NSW)], in circumstances where the Respondent is presently arguing that there is an overriding public interest against the disclosure of the contents of Exhibits 20, 21 and 22 to the ‘world at large’.”

10. In support of his submission that the documents were protected by public interest immunity the Commissioner submitted as follows:

“11.   The protection of the NSW Police Force’s investigative methodologies has been recognised by numerous Courts as information that is the subject of public interest immunity and warrants substantial protection, as revelation of such information carries the real risk of prejudicing the operational effectiveness of law enforcement agencies.

12.   It is essential that members of the public do not gain any understanding of how a law enforcement agency conducts its investigative inquiries. Any such knowledge may allow counter-measures to be deployed, preventing criminal activity or other misconduct from being detected or effectively investigated. This blunts the effectiveness of law enforcement, which is clearly not in the public interest.

13.   Exhibits 20, 21 and 22, … reveal the NSW Police Force’s investigative methodologies for criminal investigations … This information warrants protection.

14.   Each of Exhibits 20, 21 and 22 plainly detail Detective Sergeant Anthony Volpe’s investigative methodology in regards to the allegation that Mr Sheehy had contravened the Surveillance Devices Act 2007. This was a criminal allegation and a criminal investigation.

15.   Exhibit 21 reveals Detective Sergeant Volpe’s investigative plan, which contains, in precise terms, the investigative methodology that he intended to deploy, with a view to gathering evidence as to whether or not a criminal offence had been committed. Exhibit 20 reveals Detective Sergeant Volpe’s investigation log, which sets out the steps that he, in fact, took in seeking to gather evidence in support of the allegation. Exhibit 22 is Detective Sergeant Volpe’s investigation report. It contains the evidence that he gathered in his criminal investigation, the manner in which it was obtained, and the conclusions he drew from the evidence.

16.   All three documents contain NSW Police Force methodology that is adopted in investigating criminal allegations. There is a significant public interest in such information not being disclosed to the community at large. It is apparent that, if these documents are permitted to remain part of the public record, then the NSW Police Force’s methodologies for investigating such criminal offences, as outlined in the evidence in Exhibits 20, 21 and 22, will be revealed.

17. The same principles with respect to the need for the protection of the NSW Police Force’s investigative methodology applies to internal investigations under Part 8A of the Police Act 1990. Police officers are trained in the detection of crime. This is their primary sworn duty. As a consequence, police officers (unlike members of the public) are broadly aware of a range of investigative techniques that are used by the NSW Police Force to investigate allegations, as they use these techniques and methodology themselves.

18.   Accordingly, police officers are immediately ahead of the curve compared to other members of the public, as they know the investigative techniques their sworn colleagues may use to investigate any criminal conduct or other misconduct they may engage in, and they will be in a better position to take steps to disrupt or avoid such investigative methods being successful at detecting any such misconduct.

19. Unsurprisingly, and for this reason, police officers (other than those working within the Command itself) are not aware of the capabilities of the Professional Standards Command being the internal unit responsible for the investigation of police officers. This is essential to the maintenance of discipline within a paramilitary organisation such as the NSW Police Force. In particular, it is critical that police officers do not know the procedures used by the Professional Standards Command to examine and investigate the conduct of its own sworn officers, nor the investigative methodologies that may be deployed. This ensures that Professional Standards Command is not prejudiced in their functions, which include exercising the statutory responsibilities of the Respondent under Part 8A of the Police Act 1990 to investigate misconduct by officers.

…

23.   While it may be supposed that some investigative methods are not surprising or unexpected, there is a significant difference between what a person might expect Police methodologies to be, and what they know Police methodologies to be.

11. The Commissioner’s submission in respect of the concurrent proceedings under the GIPA Act (the GIPA Act proceedings) was that:

1. The applicants in these proceedings have brought proceedings under the GIPA Act seeking access to documents including the documents which became Exhibits 20, 21 and 22 in these proceedings;

2. The Commissioner is defending those proceedings, inter alia, on the basis that there is an overriding public interest against disclosure of those documents to the world at large; and

3. If the exhibits were accessible to the public as a result of becoming evidence in these proceedings, the Commissioner would be prejudiced in its defence of the GIPA Act proceedings “as the documents will be on the public record and effectively available to the ‘world at large’”.

12. The Commissioner asserted that the making of non-publication orders is “desirable” in order to “preserve the respondent’s position at least until such time as the Tribunal, in the GIPA Act proceedings, has the opportunity to determine whether or not it is in the public interest to reveal this evidence to the ‘world at large’”.

13. The applicants in the proceedings filed short written submissions opposing the non-publication orders sought by the Commissioner.

Consideration

Protection of Investigative Methods

14. Mr Fernon SC, who appeared for the Commissioner, referred to the decision of the Appeal Panel of the Administrative Decisions Tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 which he submitted, correctly in our view, “remains the leading authority on whether or not orders under s 64 should be made”.

15. NSW v Dezfouli involved an application under s 75 of the Administrative Decisions Tribunal Act 1997 (NSW) however that provision is largely replicated in ss 49 and 64 of the NCAT Act.

16. The decision has been referred to with approval in a number of decisions of this Tribunal, including the Appeal Panel: CYL v YZA [2007] NSWCATAP 105 at [100]-[102]; CVV v United Resource Management Pty Ltd [2016] NSWCATAD 271; Applicants v Commissioner of Police [2015] NSWCATAD 22 at [40]; CCB v Department of Education and Communities [2015] NSWCATAD 145; Diri v Board of Studies Teaching and Education Standards [2014] NSWCATAD 222.

17. The Appeal Panel of the Administrative Decisions Tribunal held in NSW v Dezfouli:

“50 Within the opening words of section 75(2) of the ADT Act … three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.

51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. … his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is ‘really necessary to secure the proper administration of justice in proceedings before it’. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act.

…

58 … it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).

…

61 … it is unthinkable that the word ‘desirable’ in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.

…

81 It is difficult if not impossible to set out in short form all the matters that, according to the case law …, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

82 ... In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be ‘special’ or ‘out of the ordinary’ (though a requirement that they be ‘exceptional’ may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.”

18. It is apparent from these passages that authorities concerning the application of the common law or other statutory regimes concerning the making of non-publication or non-disclosure orders do not directly govern the questions which arise pursuant to s 64 of the NCAT Act. Nevertheless, those authorities will be of assistance.

19. Mr Fernon referred to a number of authorities which he submitted established that “the protection of the NSW Police Force’s investigative methodologies … [is] information that is the subject of public interest immunity and warrants substantial protection”.

20. It may be readily acknowledged that there is a public interest in protecting from publication detailed information concerning Police methodology. However, in our view, such public interest does not extend to the protection from disclosure of documents which record nothing other than that the Police had, in the course of an investigation, undertaken steps which would be disclosed as a matter of course in a criminal trial and which any person, who had observed any criminal trial, read any work of fiction or non-fiction concerning the investigation of crime, or viewed any of numerous television dramas or documentaries concerning police investigations, would consider obvious and inevitable.

21. The authorities relied upon by Mr Fernon involved material of obvious potential sensitivity. Da Silva v R (No 2) [2012] NSWCCA 106 concerned information relating to the fixing of rewards for information and “the value placed on specific types of information in the granting of rewards”. Mao v The Cth [2012] NSWSC 370 concerned negotiation guidelines which included “quite specific instructions about the conduct of … negotiations”. McCausland v State of New South Wales [2010] NSWSC 1562 concerned standard operating procedures apparently relating to vehicle pursuits, together with transcripts of interviews and investigation reports, the content and significance of which was not further canvassed in that part of the decision which is publicly available.

18. Mr Fernon also relied upon Commissioner of Police, New South Wales v Nationwide News Pty Ltd (2007) 70 NSWLR 643. That decision involved an appeal from two decisions of Hall J, Brennan v State of New South Wales [2006] NSWSC 167 (First Brennan decision) and Brennan v State of New South Wales [2006] NSWSC 275 (Second Brennan decision), in which his Honour had made non-publication orders in respect of certain material concerning under-cover operations of the NSW Police Force and declined to make orders in respect of other material.

19. In the First Brennan decision, Hall J held:

44 In addition to protecting ongoing and/or future investigations, immunity may also be claimed to prevent the disclosure of information that would reveal police methods of operation or of information which tends to disclose the channels by which police obtain their information”

24. His Honour referred to the decision of the Supreme Court of Canada in R v Mentuck (2001) 3 SCR 442 and stated (at [49]) that a number of propositions could be taken as established by that judgment, including:

(e) Where the level of detail claimed to constitute a danger to ongoing and future operations, if disclosed, is relatively general in nature, that fact is relevant to the strength of the claim for non-disclosure.

…

(h) The danger to the efficacy of an undercover operation is not significantly increased by re-publication in the media of the details of similar operations that have already been well-publicised in the past.

(i) On that basis, it is the incremental effect of the proposed ban, viewed in light of what has already been published before, that must be evaluated.

(j) Accordingly, re-publication of such information will not necessarily constitute a serious risk to the efficacy of police operations, and thus to that aspect of the proper administration of justice.

25. His Honour then held:

51 The issue in the present case … is the public interest in the non-disclosure of certain information in relation to specialised investigation methodology employed by police. The open justice principle is to be balanced against that interest.

52 It is necessary in determining the issue to consider the evidence as to whether disclosure would be injurious to the public interest: … In that respect it is relevant to have regard to:-

(a) the confidential affidavits in support of the claim and the grounds and reasons disclosed therein;

(b) the nature of the evidence and the submissions and the contents of the relevant documents in order to determine their significance having regard to the generality or specificity of the content of the evidence, submissions or other material in determining whether disclosure would be injurious to the public interest;

(c) whether the information or material is relevant to ongoing or specific future investigations;

(d) whether the nature of the information or material discloses methodology, strategies or procedures in terms of detail that is not usually disclosed by evidence given in the course of criminal trials.

26. The Commissioner of Police appealed against his Honour’s refusal to make non-publication orders in respect of some material. The Court of Appeal extended the non-publication orders to some additional material but did not disapprove his Honour’s reasoning as set out above (see, in particular, (2007) 20 NSWLR at [47]-[54]).

27. The foregoing authorities indicate that mere invocation of the description “police methodology” cannot be sufficient to require (or make it “desirable”) that evidence be protected from publication.

28. It is necessary to consider whether the particular documents will disclose information, the disclosure of which may have a real, not fanciful, effect on police operations. Of particular significance are the “generality or specificity of the content” of the information and whether the material “discloses methodology, strategies or procedures in terms of detail that is not usually disclosed by evidence given in the course of criminal trials”.

29. In this context, material that merely discloses that police undertook or considered obvious and expected steps in the course of an investigation would not need protection from disclosure in the public interest.

30. Mr Fernon was unable to point to any element of the Exhibits which would disclose information which any person, who had observed any criminal trial, read any work of fiction or non-fiction concerning Police investigations or watched television shows involving real or fictitious Police investigations, would not consider inevitable and obvious.

31. Mr Fernon submitted that there were two answers to the proposition that disclosure of the documents would disclose nothing that was not already information commonly known or understood by members of the public. The first argument was, as set out in the written submissions, “there is a significant difference between what a person might expect Police methodologies to be, and what they know Police methodologies to be.” The second argument was that “when something is revealed as to what is done and how it is done, also implicitly revealed is what is not done.”

32. It is possible to imagine circumstances in which Mr Fernon’s first point might have some force. However, in our view, that argument has no force in relation to the information disclosed in the Exhibits. The only investigative step taken by Detective Sergeant Volpe which is disclosed by Exhibits 20 and 21 is conducting an interview with the individual who was thought to have disclosed the commission of the offence to the Police.

33. It is clear in our view that the fact, that the Police would seek to interview the person who has disclosed the potential commission of a crime to Police, is not only what the public might expect the Police to do in the course of an investigation, it is so obvious and necessary a step in the investigation of crime that any member of the public who thought about it would regard it as a certainty that that would be something that occurred in the course of a Police investigation. It is impossible to imagine any respect in which the fact that Police seek to interview witnesses would need to be protected in the public interest.

34. The only other information concerning investigative steps which appears from Exhibits 20 and 21 is the possibility that a search warrant might be executed to obtain the relevant recording device in order to enable it to be examined and that Constable Sheehy and other Police officers who had involvement in the reporting of the suspected offence might be interviewed.

35. In our view the propositions:

1. That a search warrant was contemplated and that a number of officers might be required to be involved in the execution of the search warrant; and

2. That specialist technical expertise might be required to examine any recording device seized,

could not be said to be matters that would come as any surprise to any member of the public who had any familiarity with criminal investigation. Again it is possible to say that these are facts not only expected by members of the public but effectively known by members of the public. The same can be said of the fact that Detective Sergeant Volpe considered interviewing Constable Sheehy and other officers.

36. The other matter in Exhibit 21 that Mr Fernon suggested it would not be in the public interest to have disclosed is the fact that Detective Sergeant Volpe had identified the resources which might be required in the course of the investigation and had contemplated whether any external costs or constraints should be anticipated in the course of the investigation. We see no reason why the fact that Detective Sergeant Volpe undertook steps, which were not only unremarkable but to be expected of any person in any field assessing any proposed course of conduct (albeit not always expressly or in writing), is a matter which would not be obvious to any member of the public who gave the matter any thought.

37. The final document, Exhibit 22, is Detective Sergeant Volpe’s investigator’s report. There is nothing in that document which raises any issue not already addressed in relation to Exhibits 20 and 21.

38. Mr Fernon’s alternative argument, that the disclosure of what investigative processes are not used is as significant as the disclosure of those which are used, fails once it is recognised that the decision to use particular investigative procedures is a decision of the individual officer conducting the investigation in question. The fact that one particular officer chooses not to utilise a particular investigative procedure is not (unless the decision is expressly made pursuant to a policy that determines whether the investigative procedure should be used) indicative that the relevant investigative procedure would not be used in any other case. We are am not persuaded that there is any basis upon which it could be said that the disclosure of Exhibits 20, 21 and 22 would reveal significant relevant information about the reasons why certain investigative procedures may not have been used.

39. The existence or otherwise of policies concerning when particular investigative procedures should be used, and the content of such policies, might constitute material which the public interest requires not be disclosed (see, for example, the decisions cited by Mr Fernon and discussed at [21] above), but there is nothing in any of the Exhibits under consideration which discloses or suggests the existence of any such policy.

40. We cannot conclude that there is any public interest requiring that access not be permitted to Exhibits 20, 21 and 22 if the media were to seek access prior to the conclusion of the proceedings, or if access were sought after the conclusion of the proceedings pursuant to Rule 42(2) of the Civil and Administrative Tribunal Rules 2014 (NSW).

Prejudice to the Commissioner’s position in other proceedings

41. We consider that the argument that the refusal to make a non-publication order in respect of Exhibits tendered in these proceedings would constitute a pre-emption or denial of the Commissioner’s capacity to defend the GIPA Act proceedings cannot be maintained. There may be some similarities between the test we are required to apply in determining whether to make a non-publication order and the test applicable in the GIPA Act proceedings (that is, whether there is an overriding public interest against disclosure) but it is not the same test. The circumstance that the documents have been tendered in these proceedings may be a fact which becomes relevant in the GIPA Act proceedings but the fact that the GIPA Act proceedings are on foot is not a reason why these proceedings should not follow the usual course. It cannot be unprecedented that a document, the subject of an access application pursuant to the GIPA Act, comes into the public domain by other legitimate means, including being tendered in evidence in other proceedings in a court or this Tribunal.

42. We are not persuaded that the fact that the documents are the subject of an application in other proceedings is relevant to our decision on this application.

43. We note that the application in the other proceedings is not limited to the documents that are the subject of this application, that is Exhibits 20, 21 and 22.

Other matters

44. We also note that the Commissioner points out that the Tribunal has made a non-publication order in respect of other evidence in the proceedings including Mr McDonald’s home address and Constable Sheehy’s disciplinary record. We do not consider that the decisions made in that regard are inconsistent with our decision in respect of Exhibits 20, 21 and 22.

45. The order prohibiting the publication of Mr McDonald’s home address reflected the general practice that serving Police officers are not required to disclose their home address. Mr McDonald is no longer a serving Police officer but the Tribunal considered that similar considerations as justified the general practice would be applicable in his case. The Commissioner did not object to the Tribunal making a non-publication order at the time. That decision has no bearing on the present application.

46. Likewise the non-publication order in respect of Constable Sheehy’s disciplinary record was made in recognition of the fact that that document included details of complaints which were not sustained and sensitive personal information. Again the Commissioner did not object to the making of non-publication orders in relation to that document and the matters justifying that decision are not the matters which come into consideration in relation to Exhibits 20, 21 and 22.

Conclusion

47. For the foregoing reasons we are not persuaded that it is “desirable” to make non-publication orders in respect of Exhibits 20, 21 and 22 and we decline to do so.

48. We are conscious that the publication of these reasons will disclose sufficient information about Exhibits 20, 21 and 22 that it may pre-empt and render nugatory any appeal from our decision which the Commissioner may wish to pursue. The Commissioner submitted that:

To the extent there is any requirement to refer to the content of any of [the] evidence in the judgment, the Respondent also seeks orders that those paragraphs of the judgment be published only to the parties, with orders that those paragraphs not be published or disseminated by the parties to any other person.

49. Because we have declined to make non-publication orders there will be no reason for the suppression from publication of any part of this decision. However, in order to preserve the Commissioner’s position in the event he wishes to appeal against our decision, we will order that, subject to further order, these reasons for decision not be published generally for seven days after they have been published to the parties.

Orders

1. Application for non-publication orders dismissed.

2. Subject to further order, these reasons for decision are not to be released to the public until 7 days after they have been provided to the parties.

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

Registrar

Decision last updated: 19 February 2018