Rawan Arraf v NSW Crime Commission

[2022] NSWCATAD 81

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 81

Hearing dates:

On the papers

Date of orders:

11 March 2022

Decision date:

11 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

H Dixon SC, Senior Member

Decision:

The access application to the New South Wales Crime Commission made on 4 June 2021 is not a valid application pursuant to s 43(2) of the Government Information (Public Access) Act 2009 (NSW) and accordingly application 2021/00312080 made on 3 November 2021 is dismissed.

Catchwords:

GOVERNMENT INFORMATION – access application – whether information “excluded information” – whether invalid application

Legislation Cited:

Administrative Decision Review Act 1997 (NSW);

Criminal Assets Recovery Act 1990 (NSW); Crime Commission Act 2012 (NSW); Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Achieve Australia Ltd v Department of Family and Community Services (NSW) [2014] NSWCATAD 171

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

Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253

Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256

Chu Kheng Lim v Minister for Immigration [1992] HCA 64

Coleman v Power (2004) 220 CLR 1

Coppock v Willoughby City Council [2021] NSWCATAD 166

DNM v NSW Ombudsman [2019] NSWCATAP 77

DRJ v Commissioner of Victims Rights; DRK v Commissioner of Victims Rights; DRL v Commissioner of Victims Rights; DRM v Commissioner of Victims Rights; DRN v Commissioner of Victims Rights [2019] NSWCATAD 195

Hooper v Willoughby City Council [2021] NSWCATAD 208

New South Wales Crime Commission v Hindmarch [2019] NSWSC 1801

Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130

Texts Cited:

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The Convention on the Elimination of All Forms of Discrimination against Women

The Convention on the Elimination of All Forms of Racial Discrimination

The International Covenant on Civil and Political Rights

The Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime

Category:

Principal judgment

Parties:

Rawan Arraf (Applicant)
New South Wales Crime Commission (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00312080

Publication restriction:

None

Reasons for decision

Background

1. In separate jurisdictions the Applicant acts for a number of persons who are said to be victims of acts of violence committed in overseas countries during the period August 2014 and November 2014. The acts of violence are said to have been carried out by a number of persons including someone identified as “KS”, an Australian citizen.

2. By application dated 3 November 2021 the Applicant seeks to invoke the jurisdiction of the Tribunal to review a decision of the New South Wales Crime Commission (“the Respondent”) made on 8 June 2021 refusing access to 3 categories of documents sought by the Applicant by way of an application for information under the Government Information (Public Access) Act2009(NSW) (“the GIPA Act”).

3. In its decision of 8 June 2021 the Respondent decided that the application was an invalid application under s. 43(2) of the GIPA Act.

4. The Applicant then applied for external review on 3 August 2021 to be carried out by the Information and Privacy Commissioner.

5. In a report dated 7 October 2021 the Information and Privacy Commissioner, through her delegate, and having reviewed all the materials, concluded that she was satisfied that the decision by the Respondent that the access application was not a valid application was justified and made no recommendations to that agency.

Jurisdiction

6. The Applicant seeks review of the decision of the Respondent under s 80 and s 100 of the GIPA Act in respect of the Respondent’s decision that the access application made to the Respondent was not a valid application.

7. In these proceedings:

1. the role of the Tribunal is to determine the correct and preferable decision having regards to the applicable law and the material before it as required by s 63(1) of the Administrative Decision Review Act 1997 (NSW);

2. the onus is on the Respondent to satisfy the Tribunal that its decision in regard to the access application is justified as set out in s 105 of the GIPA Act.

8. The objects of the GIPA Act are set out in s 3, which includes authorising and encouraging the proactive public release of government information by agencies, and providing that “access to government information is restricted only when there is an overriding public interest against a disclosure”.

9. The public interest considerations against disclosure are closed by reason of s 14 of the GIPA Act.

10. Section 14(1) of the GIPA Act provides that the information prescribed in Schedule 1 of that Act is information for which there is a conclusive presumption of an overriding public interest against disclosure. Included in Schedule 1 cl 6 is the following:

(1)   It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

(2)   Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

11. Section 43 of the GIPA Act states:

(1)   An access application cannot be made to an agency for access to excluded information of the agency.

Note: Information is excluded of an agency if it relates to any function specified in Schedule 2 in relation to the agency.

(2)   An application for government information is not a valid access application to the extent that the application is made in contravention of this section.

12. Schedule 2 of the GIPA Act states:

Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency.

13. Clause 2 of Schedule 2 of the GIPA Act provides that information relating to the “investigative and reporting functions” of the New South Wales Crime Commission is excluded information. The word ‘function’ is defined in cl 1 of Schedule 4 of the GIPA Act to include ‘power, authority or duty’. The expression to ‘exercise a function’ is defined in the same clause to include ‘perform a duty’.

14. Section 43(1) of the GIPA Act thus provides that an access application cannot be made to an agency for access to “excluded information” of that agency. Section 43(2) then makes clear that an application for government information that is “excluded information” is not a valid access application to the extent that the application is made in contravention of subsection 43(1).

15. In order for the information sought to be excluded it must thus “relate to” the Respondent’s investigative and reporting “functions”.

16. The issue thus is whether the documents sought by the Applicant have a requisite relationship with the specified “functions” of the Respondent.

17. The Tribunal notes that, the parties having consented, an order was made by the Tribunal on 2 February 2022 that the matter as to the validity of the application is to be determined on the basis of the written materials filed by the parties without the need for the parties to attend. The parties have filed extensive written submissions which are referred to, and dealt with, below and to which the Tribunal has had full regard.

Material before the Tribunal

18. In support of the application the Applicant has relied on the following material:

1. written submissions received by the Tribunal on 21 January 2022;

2. an email dated 14 May 2021 from the Freedom of Information and Privacy Law Section of the Department of Foreign Affairs addressed to the Applicant;

3. supplementary written submissions received by the Tribunal on 16 February 2022.

19. In support of its case the Respondent relied upon the following materials:

1. an affidavit of Nathan Leivesley, a solicitor employed by the Respondent, affirmed on 13 December 2021;

2. written submissions received by the Tribunal on 14 December 2021;

3. reply submissions received by the Tribunal on 1 February 2022;

4. correspondence from the Crown Solicitor’s Office to the Tribunal dated 16 February 2022.

Documents Sought

20. The access application of 4 June 2021 made by the Applicant sought from the Respondent the following 3 categories of documents:

(1) Documents relating to Australia’s freezing, seizure or confiscation of assets of designated person (KS) who was listed on 13 November 2014 for the purposes of s. 15 of the Charter of the United Nations Act 1945 Listing 2014 (No. 1) as required by paragraph 1(c) of the UNSC Resolution 1373 (2001), and with reference to UNSC Resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning Islamic State in Iraq and the Levant (Da’esh), Al-Qaida, including, but not limited to:

(a)   submissions;

(b)   memorandums;

(c)   briefing papers;

(d)   correspondence;

(e)   financial investigations;

(f)   list of financial statements or records;

(g)   financial transaction report data;

(h)   external audit reports.

(2)   Documents which contain information regarding property previously owned by KS in New South Wales by the Trustee and Guardian, the NSW Crime Commission or any NSW government entity.

(3) Documents held by the NSW Crime Commission relevant to proceedings to confiscate assets or property of KS pursuant to the Criminal Assets Recovery Act 1990.

The Applicant’s Grounds

21. The grounds for the review application of 3 November 2021 advanced by the Applicant are that the decision of the Respondent of 8 June 2021, that the application was not a valid application reviewable under Part 5 of the GIPA Act, was in error and that the decision maker failed to take into account relevant material for the following reasons:

(a) That the application does not relate to “excluded information” as defined in s. 43(2) of the GIPA Act. This scope of information sought is narrow. KS is understood to be deceased, any information that specifically relates to KS in the context of this application is therefore highly unlikely to be prejudicial into any ongoing investigation.

(b)   That there is a compelling public interest in the release of information sought as it relates to justice for Yazidi victims, and the financing of terrorism, following the decision to impose UN and domestic sanctions to seize the assets of KS.

(c)   To uphold the decision would risk putting NSW in breach of international law provisions that contain a right to a remedy, specifically:

(i)   Article 6(6) of the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the “Palermo Protocol”)

(ii)   Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (resolution 39/46) (“CAT”).

Functions

22. In assuming the burden in these proceedings of establishing that the decision under review is justified as required by s 105(1) of the GIPA Act, the Respondent sets out in great detail the functions conferred on the Respondent under various legislation including as follows:

Functions conferred by the Commission Act

12   The Crime Commission Act 2012 (NSW) (Commission Act) constitutes the Commission (s. 7(1)) which “has the functions conferred or imposed on it by or under this or any Act” (s. 7(2)). Section 10 of the Commission Act describes the principal functions of the Commission:

10   Principal functions of Commission

(1)   The principal functions of the Commission are as follows—

(a)   to investigate matters relating to a relevant criminal activity or serious crime concern referred to the Commission by the Management Committee for investigation,

(a1)   to investigate matters relating to the criminal activities of criminal groups referred to the Commission by the Management Committee for investigation,

(b)   to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions,

(c)   to furnish evidence obtained in the course of its investigations (being evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory) to the Attorney General or to the appropriate authority in the jurisdiction concerned,

(d)   to reinvestigate matters relating to any criminal activity that were the subject of a police inquiry (being an inquiry referred for reinvestigation to the Commission by the Management Committee) and to furnish its findings to the Committee together with any recommendation as to action the Commission considers should be taken in relation to those findings,

(e)   to furnish in accordance with this Act reports relating to organised and other crime, which include, where appropriate, recommendations for changes in the laws of the State,

(f)   to provide investigatory, technological and analytical services to such persons or bodies as the Commission thinks fit,

(g)   with the approval of the Management Committee, to work in co-operation with such persons or authorities of the Commonwealth, the State or another State or Territory (including any task force and any member of a task force) as the Commission considers appropriate.

(2)   Nothing in this Division precludes the Commission from inquiring into matters connected with, or arising out of, the exercise of its functions under this or any other Act or law, whether or not those matters are the subject of a reference to the Commission by the Management Committee.

14   The Commission has specific investigative powers (for the performance of its functions):

a.   Search warrants. The Commission may apply to an authorised officer for search warrants, which would authorise search and seizure powers to any member of the NSW Police Force or another person: Division 3, s. 17. The Commission may retain a thing seized under a search warrant if, and for so long as, retention of the thing is considered by the Commission to be reasonably necessary for the purposes of an investigation to which the thing is relevant: s. 18.

b.   Hearings. For the purposes of an investigation, the Commission may hold hearings (s. 19). An executive officer with special legal qualifications may summon a person to appear before the Commission at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons (s. 24(1)). Counsel assisting the Commission (and others) may examine or cross-examine a witness on any matter the Commission considers relevant to the investigation.

c.   Obtaining information, documents or things. Part 2, Division 5 provides a suite of production powers to compel production of documents relevant to an investigation.

Functions conferred by the CAR Act

16   Additional functions are conferred by the Criminal Assets Recovery Act 1990 (NSW) (CAR Act). Section 11 of the Commission Act provides:

The Commission may exercise a function conferred or imposed on it by the Criminal Assets Recovery Act 1990, may carry out investigations in aid of the exercise of those functions and may, for the purposes of that Act, make such use as it thinks fit of any information obtained by it in the execution of this Act.

17   The principal objects of the CAR Act are to provide for the confiscation of the property of a person if the Supreme Court finds it more probable than not that the person has engaged in serious crime related activities (s. 3(a)); to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion that the person has engaged in a serious crime related activity (or has acquired any of the proceeds of any such activity of another person) unless the person can establish that the wealth was lawfully acquired (s. 3(a1)); and to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person (s. 3(b)); and to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings (s. 3(b1)); and to enable law enforcement authorities effectively to identify and recover property (s. 3(c)).

23. Under the CAR Act the following matters are as set out in the Respondent’s submissions as included in the Respondent’s functions:

a.   Restraining orders. Under Part 2 of the CAR Act, the Commission may apply ex parte to the Supreme Court for a restraining order in respect of interests in property : s. 10A(1). The Supreme Court must make the order if an authorised officer of the Commission provides an affidavit deposing to a suspicion that (for example) “the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities” (s. 10A(5)(i)) or “ interest is serious crime derived property” (s. 10A(5)(iii)). Part 2 provides a detailed scheme outworking the effect of and process for restraining orders.

b.   Assets forfeiture order. The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown interests in property of a person: s. 22(1). The Court must make the order if the Court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the application for the assets forfeiture order was, at any time not more than 6 years before the making of the application, engaged in: a serious crime related activity (as defined by s. 6 of the CAR Act) involving an indictable quantity, a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.

c.   Proceeds assessment order. The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person: s. 27(1). The Court must make the order against the adult person if the Court finds it more probable than not that: the person derived proceeds from an illegal activity or illegal activities of another person, and the person knew or ought reasonably to have known that the proceeds were derived from an illegal activity or illegal activities of another person, and the other person was, at any time not more than 6 years before the making of the application for the order, engaged in: a serious crime related activity involving an indictable quantity, or a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.

d.   Unexplained wealth orders. The Commission may apply to the Supreme Court for an unexplained wealth order requiring a person to pay to the Treasurer an amount assessed as the value of the unexplained wealth of the person: s. 28A(1). The Court must make the order if the Court finds that there is a reasonable suspicion that the person against whom the order is sought has, at any time before the making of the application for the order: engaged in a serious crime related activity or serious crime related activities, or acquired serious crime derived property from any serious crime related activity of another person: s. 28A(2).

e.   Further orders regarding disclosure of property interests. If an application for an assets forfeiture order or proceeds assessment order or unexplained wealth order is made, and evidence or a warranty or other representation was given or made in proceedings for the order, or examination proceedings under the CAR Act by a person against whom the order is made (the defendant) as to the defendant’s interests in property, the Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown a specified interest in property of the defendant at the time the evidence, warranty or representation was given or made that was not disclosed in the evidence, warranty or representation: s. 31A(1)—(2). There is an equivalent power – seeking an assessment order or unexplained wealth order in relation to that property: s. 31B.

f.   Examination power in applications for confiscation orders. A confiscation order means an assets forfeiture order, proceeds assessment order or unexplained wealth order: see s. 4(1) of the CAR Act. If an application is made for a confiscation order or an order under section 31A (2) or 31B (2) (a non-disclosure order), the Supreme Court may, on application by the Commission, when the application for the confiscation order or non-disclosure order is made or at a later time, make any one or more of the following orders: an order for the examination on oath of the affected person, or another person, concerning the affairs of the affected person, including the nature and location of any property in which the affected person has an interest: s 31D(1)(a).

g.   Information gathering powers. Part 4 of the CAR Act creates and prescribes information gathering powers:

i.   Production order. If an authorised officer has reasonable grounds for suspecting that a person has possession or control of a property-tracking document, or property-tracking documents, the authorised officer may: apply to the Court, ex parte, for a production order against the person suspected of having possession or control of the document or documents The Supreme Court may order the person against whom an application for a the production (or to be made available for inspection): s. 33(1)—(2). There are restrictions on disclosures about production orders: s. 37A.

ii.   Search and seizure powers. An authorised officer under the CAR Act may apply to certain persons, for the issue of a search warrant if the authorised officer under the Act has reasonable grounds for believing that there is or, within 72 hours, will be on any premises: anything in which a person has an interest that constitutes serious crime derived property, or anything in which a person has an interest that constitutes illegally acquired property of a person reasonably suspected of having been engaged in serious crime related activities, or evidence of a serious crime related activity, or evidence of illegal activity of a person reasonably suspected of having been engaged in serious crime related activities, or property an interest in which is subject to a restraining order. There is an additional power of seizure: s. 39. Additional search powers are described by Division 3 (“Search powers (property tracking)”).

iii.   Monitoring powers. If an authorised officer has reasonable grounds for suspecting that a financial institution may obtain information about transactions conducted by a particular person with the institution, the officer may apply to the Court for the making of an order directing the financial institution to give to the Commission, or to an authorised officer nominated by the Commission, information obtained by the institution about transactions conducted by the person with the institution: s 48.

NSW Trustee and Guardian

24. As part of its functions the Respondent has amongst other things the following statutory relationship with the NSW Trustee and Guardian:

(a)   Restraining orders. The Supreme Court may, when it makes a restraining order (or during the time that it is in force), and if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies. Section 18 of the CAR Act provides protections for the NSW Trustee Guardian and staff in the performance of the obligations under a restraining order. (See CAR Act, s. 10B(2); see, by way of example, New South Wales Crime Commission v Hindmarch [2019] NSWSC 1801 at [37] – [39].)

(b)   Assets forfeiture order. On the making of an assets forfeiture order taking effect in relation to an interest in property, the interest is forfeited to the Crown and vests in the NSW Trustee and Guardian on behalf of the Crown (see s. 23 of the Commission Act).

Approach to Construction

25. The Applicant and the Respondent have each in their written submissions addressed the approach to the construction of the provisions of the GIPA Act as they apply in respect of the functions set out above.

26. For the Respondent, drawing on cases dealing with the phrase “in respect of” it was submitted that, the words “relates to”:

(a)   have broad import and should be given wide meaning to convey some connection or relation between the two subject matters to which the words relate;

(b)   be interpreted in a context sensitive way;

(c)   should be interpreted with the following textual, purposive, and contextual considerations in favour of treating the words with their natural broad meaning:

(i) An important object of the GIPA Act is to restrict access to information “when there is an overriding public interest against disclosure”. Schedule 2 isolates functions which are plainly more sensitive than those undertaken by other agencies subject to the Act.

(ii) An important implication in the choice to make the access application invalid (rather than the important information held subject to a conclusive presumption against disclosure) is to preserve the freedom of the agency to operate without any risk of engaging the GIPA Act. That is entirely consistent with the CAR Act, which places an enormous significance of the Commission to operate without notice to persons who might be subject of orders (for example, by making ex parte applications or with the benefit of non-disclosure restrictions).

(d)   should, as a result, be interpreted such that the information sought need not be central to the investigative functions in order to be excluded, but includes information that relates to the investigative functions by, for example, being the product of those investigations or having some connection to the investigations.

27. As to the construction of the “investigative and reporting” functions, the Respondent submits as follows:

(a) the Respondent is not aware of a decision of the Tribunal or its predecessor dealing with the scope of "investigative and reporting" functions specifically in relation to the NSW Crime Commission. However, there is treatment of that phrase in Schedule 2 in relation to the excluded information of other agencies;

(b)   the Tribunal held in Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256:

The expressions 'complaint handling, investigative and reporting functions' in cl 2 of Sch 2 of the GIPA Act are in general terms and not by reference to any specific legislative provision: DNM, at [46] and [47]. It is accepted that these expressions should be given their natural meaning: Bergi (supra).

(c)   the Tribunal considered the scope of the complaint handling and investigative functions of the Office of Local Government ("OLG"), for the purpose of Sch. 2, in Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253. The Tribunal ascribed to the phrase its natural and ordinary meaning, and that a "significant breadth of information is capable of falling within the definition of "investigative and complaint handling functions" at [23].

(d)   the Tribunal has also confirmed that information may be "excluded information", even if it has been prepared for multiple purposes. In Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130, information prepared in response to an investigation by the HCCC was "excluded information", even though it had also been used for the purpose of internal investigations by the Local Health District (at [54] and [65]). A similar conclusion was reached in Achieve Australia Ltd v Department of Family and Community Services(NSW) [2014] NSWCATAD 171 with respect to a report prepared in relation to the Ombudsman's complaint handling or investigative functions;

(e)   accordingly, the term "investigative and reporting function" should receive its natural and ordinary meaning.

28. The Applicant’s submissions in respect of the structure and construction of the GIPA Act as set out in her written submissions are as follows:

(a) Section 3(1) of the GIPA Act identifies that the object of the GIPA Act is to “maintain and advance a system of responsible and representative democratic Government that is open, accountable for and effective, the objective of this act is to open government information to the public”.

(b) Section 9 GIPA Act creates an ordinary presumption for the release of government information, provided that the access application that does not seek “excluded information”.

(c) It is the Applicant’s position that section 3(1) and section 9 of the GIPA Act should be the starting point for the review of the decision.

(d) Schedule 2 GIPA Act specifies information relating to the “investigative and reporting functions” of the Commission as “excluded information”. The GIPA Act does not define “investigative and reporting functions”. It is accepted that a broad construction of those words applies: Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 at [48]. However, it is also noted that the Beregi case states as follows at [69]:

“Notwithstanding Parliament’s intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to “open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure” (GIPA Act, s 3(1)(c)).”

(e)   The relevant law in relation to access applications and the definition of "excluded information" set out by the Respondent is not disputed, however, not all of the information requested falls within even a broad construction of "investigative and reporting functions".

(f)   In DNM v NSW Ombudsman [2019] NSWCATAP 77, the Appeal Panel observed at [51] that: "The statutory purpose of the definition of excluded information is to restrict or prohibit access to government information when there is an overriding public interest against disclosure such as the public interest in delivering responsible and effective government."

Documents Relate to Functions - Submissions

29. In respect of each of the categories of documents the subject of the access application the Respondent, in its initial written submissions, submits as follows:

(a) Leaving aside the references to the Commonwealth and international instruments, item 1 seeks all documents held in relation to “Australia’s” “freezing, seizure or confiscation of assets of” the person. Item 3 seeks “Documents held by the NSW Crime Commission relevant to proceedings to confiscate assets or property of KS pursuant to the Criminal Assets Recovery Act 1990.”

(b)   The information sought by these items “relates to” the “investigative and reporting functions” of the NSW Crime Commission for the following reasons.

(c)   First, insofar as this item seeks information which precedes the commencement of asset restraining or confiscation proceedings, the only functions of the Commission are investigative. That is confirmed by review of the statutory functions of the Commission described by the Commission Act which all involve the investigation and furnishing of evidence of investigations in relation to certain criminal conduct. Whilst these functions need only “relate to” the “investigative and reporting functions”, the access application seeks information at the core of those functions.

(d)   Second, proceedings brought by the CAR Act are a core product and a direct consequence of the investigations of the Commission. Such a close connection does not test the outer boundaries of the term “relates to”. Whilst that term does not require a causal relationship, in this case, there is a direct causal relationship between the investigations of the Commission and proceedings for a restraining order or confiscation orders under the CAR Act.

(e)   Third, and in any event, the investigative functions of the Commission do not cease at the point proceedings are commenced. Rather, the Commission can use a series of information gathering powers in or alongside the proceedings – such as seeking production orders (above at paragraph 18g.i); search and seizure powers (above at paragraph (18g.ii)); and monitoring powers (above at paragraph 18g.iii).

(f)   Fourth, the evidence of Nathan Leivesley is that, in his experience and expectation, any information held would directly relate to an investigation conducted by the Commission. That evidence is given because the central action involved in any proceeding commenced under the CAR Act is the furnishing of investigate material to the Supreme Court, which triggers obligations on the Court to make orders under the CAR Act. Specifically, an officer of the Commission must depose to suspicions which could only arise in the course of an investigation. The evidence prepared for such proceedings directly describes the investigative actions of the Commission.

(g)   Access application item 2 seeks “Documents which contain information regarding property previously owned by KS in New South Wales Trustee and Guardian, the NSW Crime Commission or any NSW government entity.”

(h)   On one reading, all that is asked by this item (insofar as it relates to the Commission) is for “Documents which contain information regarding property previously owned by KS”. It may be that this access application has been sent verbatim to multiple agencies.

(i)   The Commission would only hold information relating to property held by the Trustee and Guardian because the Trustee and Guardian is the representative of the Crown holding property following a confiscation order (see above at paragraph 20). That circumstance is the direct product of the investigative functions of the Commission, following order made by the Supreme Court under the CAR Act.

(j)   That information undoubtedly “relates to” the investigative and reporting functions of the Commission because the Commission would only hold it insofar as it is the product of, or relevant to, those functions.

(k)   That position is confirmed by the evidence of Nathan Leivesley that, insofar as the information related to the NSW Trustee and Guardian, it would only be held because the property has been transferred as the direct outcome of an investigation by the Commission.

30. In response to those submissions the Applicant’s position as set out in her initial written submissions are to the following effect:

(a)   The Item 1 request for documents held in relation to “Australia’s” “freezing, seizure or confiscation of assets of” KS, relate to the property identification, confiscation and debt recovery aspects of the Commission’s work rather than any investigation into KS.

(b)   The Item 2 request for information about the property previously owned by KS is information that is relevant to the property identification, confiscation and debt recovery aspects of the Commission’s work rather than any investigation into KS.

(c) The Item 3 request for “Documents held by the NSW Crime Commission relevant to proceedings to confiscate assets or property of KS pursuant to the Criminal Assets Recovery Act 1990” relate to an investigation that has been resolved and that it also therefore falls outside the scope of “investigative and reporting functions”.

(d)   In relation to the Respondent’s submission at paragraph 29(f) above, the investigative functions of the Commission may not cease at the point proceedings are commenced, but they do cease at the point at which proceedings are resolved. Insofar as proceedings cannot continue in perpetuity, or cannot reasonably continue beyond the death of the investigated individual, the requested information cannot be argued as in the Respondent’s position to automatically fall within the scope of the Commission’s investigative functions.

(e) In response to the evidence of Nathan Leivesley, the evidence at paragraph 6 identifies the functions as conferred by the Crime Commission Act 2012 (NSW) (“CC Act”) and the CAR Act as distinct and that the Act confers functions “in relation to the restraint, seizure and confiscation of assets”. While the functions under the CAR Act may include compulsive information gathering functions on the Commission, these are not the only functions held by the Commission. The Applicant also notes that the evidence of Nathan Leivesley does not distinguish between ongoing and concluded or resolved investigations.

31. In addition the Applicant submitted as follows:

(a)   As the Applicant understands KS's assets have already been seized. It is therefore likely to be the case that the Commission took the decision to seize the assets on conclusion of an investigation into KS.

(b)   KS is also understood to be dead, and this has been the case since 2017.

(c)   Information in relation to KS’s assets and the Commission’s activities is already in the public domain.

(d)   Furthermore, on 14 May 2021 in response to a Freedom of Information request by the Applicant, the Department of Foreign Affairs and Trade (DFAT) confirmed that "a property in Australia previously owned by [KS] was held by the New South Wales (NSW) Trustee and Guardian pursuant to an order made on 13 November 2014 in the Supreme Court of NSW, Australia."

(e)   Given that it is likely that KS's assets have already been seized, and the fact that KS is dead, any investigative functions on which the Commission seek to rely in order to prevent disclosure of the information cannot be in relation to KS's current or future activities. Nor can there be a risk (as alluded to in paragraph 28 of the Respondent's submissions) that the Commission may give notice to KS that he may be the subject of orders, as he is dead. Nor, can there be a substantial risk that information about KS's assets would prejudice another investigation as the Applicant understands that these have already been confiscated, and in any case would not be relevant.

(f)   Further, given that the response of DFAT set out above clearly discloses specific information relating to property of KS, and indeed, directs the Applicant to "to contact relevant NSW authorities regarding the current status of assets previously owned by [KS]," there does not appear to be any concern on the part of DFAT, a public authority, that this would be in any way prejudicial.

(g)   This is a situation that clearly needs to be distinguished from the circumstances that the exemption was envisaged to protect against. One where, for example, the Commission was conducting an investigation into an individual's assets, whilst they were still alive, in order to secure compensation.

(h)   The functions of the Commission set out above are not disputed. However, the principal functions and investigative powers described are not coterminous, as appears to be the position taken by the Respondent, with the definition of “investigative and reporting functions” as defined in the GIPA Act.

(i)   Indeed, the additional functions conferred by the Criminal Assets and Recovery Act 1990 (NSW) ("CAR Act") set out above include functions that clearly fall outside the scope of the 'investigative and reporting functions' as the investigative functions under the CAR Act are described within Part 4 which prescribes information gathering powers.

(j) The position taken by the Commission suggests that any prior investigation precludes the sharing of information on that investigation’s conclusion with the general public. It is the Applicant’s submission that that cannot be compatible with the object of the GIPA Act.

(k)   In support of the above, the Tribunal at first instance in Beregi stated that in the context of the Office of Local Government’s (“OLG”) complaint and report handling functions, that a broad definition would relate to information related to a complaint until the point of its resolution [27]:

“I am of the view, contrary to the submissions of Ms Beregi, that the complaint handling and investigative functions of the Respondent encompass matters from the receipt of a complaint up to and including its resolution” [emphasis added by the Applicant].

(l)   This means that the argument made by the Respondent that the information cannot be disclosed because it is the "product of those investigations" must fall away.

(m)   At the point of the resolution of an investigation, it is the Applicant's position that the Commission is operating outside of its investigative and reporting functions, and within the scope of the other functions proscribed by the CAR Act. Here the Commission is focused on debt recovery and the confiscation of assets, a function clearly distinct from that of the investigative functions of the Commission which the Applicant does not seek to dispute.

(n) Further, the Schedule 2 exemption explicitly provides that it is only the "investigative and reporting functions" of the Commission that are excluded. Should the intention of the act have been to exclude the entirety of the Commission's activities, the specific circumscribing of the function would not have been necessary. A purposive construction of the act therefore supports the Applicant's position that there are functions of the Commission that fall outside the exclusion.

(o)    Contextual factors also lend additional weight to the position that "relates to" should not be excessively broadened:

(i) The purpose of the GIPA Act remains to “open government information to the public”.

(ii)   The public interest against disclosure is most obviously live in relation to preventing an individual who is the subject of an investigation on notice about the risk that they may become the subject of an order, this public interest rationale falls away at the point that the assets have been seized, or the investigation has been concluded.

32. In reply the Respondent deals with the submissions of whether the information “relates to” the investigative and reporting functions of the Respondent as follows:

(a)   It is common ground that “investigative and reporting functions” should receive a broad construction. However, the applicant submits information cannot “relate to” the “investigative and reporting functions” after an investigation concludes. That submission should not be accepted for the following reasons.

(b)   First, the submissions misstate the statutory language. Excluded information is not defined in relation to a particular investigation but rather the investigative functions of the agency. The question for the Tribunal remains fundamentally textual: whether the information sought by the access application “relates to” the “investigative and reporting functions” of the NSW Crime Commission. The status of any particular investigation does not bear on that issue.

(c)   Second, there is no evidence before the Tribunal of any investigation being concluded or commenced. Informal and unverified advice, in the DFAT email, that the Supreme Court has made certain orders is no basis to speculate as to the existence or currency of an investigation by the respondent.

(d)   Third, the term “relates to” does not require an immediate temporal relationship. It “requires no more than a relationship, whether direct or indirect, between two subject matters”; and the words are ‘among the broadest which could be used to denote a relationship between one subject matter and another’. It is of “broad import”: Christopher at [92]. The statute certainly covers information which relates to a finalised investigation, as much as it covers information relating to a current or potential investigation.

(e)   Fourth, the applicant relies on the first sentence of paragraph [27] in Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253. It is appropriate to consider the entire paragraph:

I am of the view, contrary to the submissions of Ms Beregi, that the complaint handling and investigative functions of the respondent encompass matters from the receipt of a complaint up to and including its resolution. These functions will include the broad complaint handling powers in section 430 of the Local Government Act and extend to the more serious functions concerning the suspension of a council, the making of a Performance Improvement Order and to the very serious undertaking of the conduct of a public inquiry into allegations against a council or councillors. I do not agree with Ms Beregi’s submission that use of the information in the course of the Public Inquiry by Mr Howard means that the information was no longer related to any function of the OLG. In my view, such a secondary use of the information does not remove its fundamental character as information of the relevant kind. Such a view is in accordance with the broad interpretation which has been given to the term information that relates to the complaint handling and investigative functions conferred by or under any Act on OLG.

(f)   The first sentence of the paragraph only describes the functions of the agency (not when information ceases to “relate to” the functions). In fact, in that case, the inquiry had concluded, and the information had even been used for a “secondary purpose”. The Tribunal upheld the agency’s decision. Beregi is an authority against the construction advanced by the applicant.

(g)   The applicant’s submissions otherwise provide no reason to doubt that the application seeks information which “relates to” the “investigative and reporting functions” of the NSW Crime Commission for the following reasons advanced in the RS:

(i)   To the extent that the access application seeks information preceding the commencement of proceedings, the information is at the core of the respondent’s investigative functions.

(ii)   Proceedings brought by the CAR Act are a core product and a direct consequence of the investigations of the Commission. Such a close connection does not test the outer boundaries of the term “relates to”. Whilst that term does not require a causal relationship, in this case, there is a direct causal relationship between the investigations of the Commission and proceedings for a restraining order or confiscation orders under the CAR Act. Investigative functions do not cease when proceedings are commenced or concluded: this is evidenced by the continuing availability of coercive information gathering powers.

(iii)   There is no challenge to the evidence of Nathan Leivesley that, in his experience and expectation, any information held would directly relate to an investigation conducted by the Commission; that proceedings under the CAR Act involve the furnishing of investigative material in which officers of the Commission are required to depose to suspicions which arise in the course of an investigation; and that the evidence in each proceeding describes the investigative actions of the Commission and the exercise of its investigative powers.

(iv)   The Commission would only hold information relating to property held by the Trustee and Guardian because the Trustee and Guardian is the representative of the Crown holding property following a confiscation order (see above at paragraph 20). That circumstances is the direct product of the investigative functions of the Commission, following orders made by the Supreme Court under the CAR Act.

[emphasis added by the Respondent]

(h)   There is also no suggestion that the Commission has not appropriately considered the request for information (without processing it) to identify the relationship between the information sought and its functions.

33. The parties with leave of the Tribunal added to their submissions by additional submissions received on ­­16 February 2022 (Applicant) and a short rebuttal by the Respondent by correspondence received on 17 February 2022.

34. The Applicant submitted:

Issue 1: Scope of information “relating to” and the investigative and reporting functions of the Commission

(a)   The position taken in the Respondent’s submissions is that because the statutory language includes the term “investigative functions” and that the “status of any particular investigation does not bear on that issue” that any information disclosed in relation to a particular function cannot be disclosed at any point in time.

(b)   It cannot be correct that there is no relationship between the status of an investigation, whether it is closed or not and whether it relates to an organisation’s functions. The meaning of an organisation’s functions must be derived from the special purpose or activity for which an entity exists or is used, and the status of a particular investigation clearly has a bearing on whether it relates to the functions of the organisation. A closed investigation simply cannot have the same status as an open investigation, for the plain reason that if the investigation continued to have relevance to the function of the organisation, it would not have been closed.

(c)   Considering the question of the meaning of function in a little more detail: a particular institution’s functions, as per the position taken in the Respondent’s own submissions dated 25 November 2021 (sic), can be derived from those functions conferred upon a particular organisation by statute. The most relevant functions in this particular case relate to the need to conduct investigations to aid the “confiscation of property of a person if the Supreme Court finds it more probable than not that the person has engaged in serious crime related activities” and to “enable the current and past wealth of a person to be recovered as a debt”.

(d)   After an investigation has been closed, that investigation, and the information collected as part of that investigation, is no longer relevant to the function of confiscating property or enabling debt recovery. If it were, the investigation would have remained open. Thus, information collected in the course of an investigation after it is closed, or has not been considered for a period of multiple years, no longer “relates to” the “investigative and reporting functions” of the institution, even if the information initially had such a character. The same logic applies where an individual has died.

(e)   The Applicant submits that the first sentence of Beregi at [27] helps to clarify that the functions of an agency are temporally bounded. It is plainly stated that the investigative functions encompass matters “from the receipt of a complaint up to and including its resolution”.

The inclusion of the words “up to and including” its resolution clearly delineate that after the resolution of the matter the function of a particular agency does not continue in perpetuity.

(f)   Further, the Applicant submits that to adopt the definition of “relates to” proposed by the Respondent would create a number of significant issues:

(i)   No information has been provided by the Respondent as to the status of the KS investigation, and that it cannot therefore be plainly determined by whether Tribunal whether the information in relation to the proceedings relates to the Respondent’s investigative functions;

(ii)   It would frustrate the statutory purpose of the definition of excluded information which, as per DNM, is to “restrict or prohibit access to government information when there is an overriding public interest against disclosure” by interpreting the exclusion as a complete bar on disclosure of any information at any point. The Tribunal is reminded that the purpose of GIPA is to balance “public interest against disclosure such as the public interest in delivering responsible and effective government” and such an approach would not appropriately balance these interests;

(iii) If the intention had been to exclude all information collected by the Commission, which appears to be the Respondent’s position, the statutory language of GIPA would have been expressed in simpler terms to achieve this end;

(iv)   Further, it would be entirely disproportionate to fail to disclose this information in light of Australia’s international law obligations most recently set out in Preventing sexual violence in conflict: joint statement, November 2021 and confirmed in the National Action Plan for Women Peace and Security 2021.

(g)   The Applicant submits that there are a number of measures available to the Respondent, including redaction of any disclosed material, to ensure that there is no prejudice to ongoing investigations.

Public Interest in the Release of Information – Applicant’s Submissions

35. The Applicant made the following submissions in respect of this ground:

(a)   In the cases of DRJ v Commissioner of Victims Rights; DRK v Commissioner of Victims Rights; DRL v Commissioner of Victims Rights; DRM v Commissioner of Victims Rights; DRN v Commissioner of Victims Rights [2019] NSWCATAD 195 (20 September 2019) the Yazidi survivors of KS’s crimes brought a case to access reparations and compensation to the Tribunal. That case was appealed to the High Court and will now be taken to a UN body. That case has been described as a landmark case that would pave the way for justice for Yazidi women.

(b)   This case relates to the need to have clear and transparent information about the assets of KS and the seizures by the Commission that followed decisions to impose UN and domestic sanctions on KS. The public has the right to know the volume and value of assets seized and to transparency of accounting for frozen assets as a result of confiscation in the context of victims’ right to reparations and references then made to an extract from the decision of the Tribunal in DRJ v Commissioner of Victims Rights [2019] NSWCATAD 195.

(c) It is the Applicant’s contention that the New South Wales Crimes Commission is frustrating the Applicant’s right to secure reparations both by declining to make an award under the Victims Rights and Support Act and now through the civil justice system by declining to provide information about proceedings in relation to the confiscation of assets related to KS.

(d)   KS is known to be deceased, and there is no negative impact on his right to privacy.

36. In respect of the overriding public interest argument raised by the Applicant the Respondent replied as follows:

(a) The submissions seek to establish that the information cannot be excluded information because there is no overriding public interest against disclosure. However, that issue only arises for a valid access application. This matter deals with the anterior issue: whether the purported access application requests “excluded information”: s. 43(1) of the GIPA Act. It is not correct to undertake that balancing exercise at the anterior stage of assessing the validity of a request for information.

(b) clause 6 of Schedule 1 of the GIPA Act quoted above provides a conclusive presumption that excluded information is subject to an overriding public interest against disclosure;

(c)   that presumption flows from the definition of excluded information, meaning the Tribunal does not undertake the balancing assessment. The purpose of cl. 6 is to ensure that excluded information is subject to an overriding public interest against disclosure where it is held by other agencies. The presumption need not apply here, because an access application cannot validly be made for the information and reference was then made to the decision in Christopher referred to above at [90].

(d) Section 9 of the GIPA Act relied upon by the Applicant provides that 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.” However, s. 4(1) of the GIPA Act defines “access application” as “an application for access to government information under Part 4 that is a valid access application under that Part.” Section 9 must be understood when the definition is read into it. Accordingly, s. 9 only relates to valid access applications and provides no basis to give a restrictive reading to s. 43(1) or Schedule 2 of the GIPA Act.

(e)   DNM v NSW Ombudsman [2019] NSWCATAP 77 at [51] (cited at AS [19]) is consistent with this position, recognising that the GIPA Act treats excluded information as being subject to an overriding public interest against disclosure. The Appeal Panel interpreted the “complaint handling, investigative and reporting functions” of the Ombudsman by reference to its “generic descriptions” and did not undertake a balancing exercise.

(f)   In any event, neither the respondent nor the Tribunal can undertake any balancing exercise in relation to hypothetical information which has not been identified and is not before the Tribunal.

[emphasis added by the Respondent]

International Law Obligations – Applicant’s Submissions

37. The Applicant submitted that Australia is a signatory to all of the main human rights treaties which contain a right to a remedy including:

(a)   The International Covenant on Civil and Political Rights (see Article 2(3));

(b)   The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) (Article 14);

(c)   The Convention on the Elimination of All Forms of Discrimination against Women (Article 2); and

(d)   The Convention on the Elimination of All Forms of Racial Discrimination (Article 6).

38. The Applicant then submitted that:

(a)   Article 14 of CAT has a self standing right to a remedy as follows:

“Article 14

1.    Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2.   Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.”

(b)   General Comment 3 (2012) on Article 14 of CAT states that each State party should ensure within its legal system the right to redress:

“Each State party is required to ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”

(c)   The scope of the CAT jurisdiction is set out at Article 5:

“Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: …

(b) When the alleged offender is a national of that State.”

(d)   Australia’s obligation, given its ratification of the human rights instruments listed above, is to ensure that victims of international human rights breaches have a right to a remedy.

(e)   The interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Juan E Mendez (A/70/303) 7 August 2015 states that attendant obligations under CAT, including Article 14, cannot be territorially limited:

“Paragraph 27: The Special Rapporteur accordingly reminds States that the jus cogens non derogable prohibition against torture and ill-treatment cannot be territorially limited and that any jurisdictional references found in the Convention against Torture cannot be read to restrict or limit States’ obligations to respect all individuals’ rights to be free from torture and ill-treatment, anywhere in the world. This prohibition and attendant obligations – such as the obligation to investigate.”

(f)   Australia has also signed and ratified the Palermo Protocol – article 6(6) of which provides that State Parties should offer victims of trafficking the possibility of obtaining compensation:

“Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.”

(g)   The Applicant further submitted that the UN Basic Principles and Guidelines on Rights to a Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian Law (the UN Principles) were adopted by the UN General Assembly, including Australia.

(h)   In addition to the above, the UN has passed a number of resolutions aimed at combatting terrorism. This includes UN Security Council Resolution 1373 (2001) under which Australia sanctioned KS. Other relevant resolutions include S/2019/988 a ‘Technical guide to the implementation of Security Council resolution 1373 (2001)’. S/2019/988 makes reference to the International Convention for the Suppression of the Financing of Terrorism, to which Australia is a party, which requires parties to consider whether mechanisms have been established by which “forfeited funds can be used to compensate victims of terrorism”.

(i)   The UN Secretary-General’s Guidance Note on Reparations for Conflict-Related Sexual Violence identifies that “judicial and/or administrative reparations should be available to victims of conflict-related sexual violence as part of their right to obtain prompt, adequate and effective remedies”.

(j)   Finally, a joint statement with UK, Canada and New Zealand among others on preventing sexual violence in Conflict under the Preventing Sexual Violence in Conflict Initiative committed Australia to “support survivors and hold perpetrators to account”.

(k) Having regard to Australia’s international legal obligations, UN Security Council resolutions, and international public commitments made by Australia it is the Applicant’s position that the GIPA Act should be interpreted and applied consistently and as far as possible to give effect to Australia’s international law obligations. The disclosure of the documents sought as part of the access application is a mechanism by which the Australian government is able to facilitate forfeited funds to be used to compensate victims of terrorism, and therefore to ensure that such victims obtain redress.

Respondent’s Reply to International Law Obligations

39. The submissions by the Applicant in respect of international law obligations are answered by the Respondent as follows:

(a)   First, the principle of statutory construction does not apply to State (as opposed to Commonwealth) legislation. The act of ratification by the Commonwealth of Australia of an international agreement does not incorporate it into domestic law. The principle in Chu Kheng Lim v Minister for Immigration is that “courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty” (emphasis added). As explained by the Tribunal in DRJ v Commissioner of Victims Rights [2019] NSWCATAD 195 at [105], “[t]hose remarks are confined to Commonwealth legislation and say nothing about the legislation of New South Wales”. In the absence of admissible extrinsic evidence, holding that the GIPA Act must be given a construction which promotes international instrument would be to “import rights and obligations into the law of New South Wales which have not been incorporated by legislation into the law”: DRJ at [120]. In DRJ, the submissions based on international law do not appear to have been pursued on appeal.

(b)   In Coleman v Power (2004) 220 CLR 1 at [19], McHugh J said: “The proposition that the ICCPR can control or influence the meaning of an Act of the Queensland Parliament of 1931 is … difficult to reconcile with the theory that the reason for construing a statute in the light of Australia’s international obligations, as stated in Teoh, is that Parliament, prima facie, intends to give effect to Australia’s obligations under international law.”

(c)   Second, there is no constructional choice which could be resolved by recourse to international law. The interpretation of the GIPA Act requires consideration of its text, context and purpose. There is no textual basis for the applicant’s submissions. There is no admissible extrinsic evidence which is “capable of assisting in the ascertainment of the meaning of the provision” for the construction supported by the applicant. In particular, there is no “treaty or other international agreement that is referred to in the Act”. The key provision here is textually clear, using standard statutory phrases which are well understood. There is no way to “read down” those provisions in any way, or to write in an exemption for the applicant.

(d)   Whilst the applicant agitates for a conclusion (that the application be treated as valid) based on international law, there is no explanation for what construction of the text leads to that conclusion, based on international law. For example, there is no explanation for why the international instruments mean that the investigative information of the Commission does not “relate to” those functions.

(e)   Third, the international instruments do not require that the information request be valid. That is for the following reasons:

(i)   There is no evidence of a breach of international law. An assertion of a breach of international law also requires evidence. In this case, there is no evidence (by affidavit or otherwise) of the position of the applicant’s clients, the actions and responsibilities of State actors, or of the availability of redress in Australia or elsewhere. The position is similar to that in DRJ at [9], where “The applicants’ argument imputes a contestable view of international law together with a particular intention to the New South Wales Parliament without an evidentiary basis.”

(ii)   The instruments do not require redress for extraterritorial criminal acts. According to AS [9], “The Applicant acts on behalf of Yazidi women who are victims of acts of violence committed between August 2014 and November 2014 in Raqqa, Syria and Northern Iraq.” DRJ also concerned the same terrorist, the applicants also being “Yazidi women who report that they were subjected to acts of violence, abduction and trafficking between August 2014 and November 2014 in Raqqa, Syria and Northern Iraq.”: DRJ at [1]. The Tribunal reviewed a similar suite of instruments and concluded at [116]: “Where a positive obligation to establish a system for the provision of reparations to victims of violations of international human rights law is expressed, it is clear from the context that what is contemplated is the provision of that system by the Member State or the signatory to the instrument (in both cases, Australia) and that the violations of human rights law, or crimes, involved are violations or crimes which have occurred within the jurisdiction of the Member State or signatory.” The crimes here are also said to be extraterritorial and accordingly the applicant’s submissions suffer from the same defect as those in DRJ.

(iii)   The instruments could only apply to the Commonwealth and not the State of NSW. Each instrument applies to a member state (being the Commonwealth of Australia) and does not impose obligations on the State of New South Wales. As held in DRJ at [113]: “It should be remembered, when considering the text of the instruments, that when States are referred to in those instruments, the reference is to Member States (such as the Commonwealth of Australia), and not to the component states of those Member States, such as New South Wales is to the Commonwealth.” See also the extract from DRJ at [116] immediately above in paragraph [26c].

(iv)   The provisions are directed to compensation mechanisms, not information access or discovery mechanisms. None of the instruments or provisions referred to by the applicant require each State to forfeit the confidence of its policing information to facilitate the discovery of assets held by persons alleged to have committed crimes internationally. In general, they involve “principles rather than imposing positive obligations” (DRJ at [116]); or are directed to substantive compensation mechanisms (DRJ at [117]).

(f)   In short, none of the international instruments oblige the Tribunal to interpret the applicant’s request for information as seeking information unrelated to the Commission’s investigative or reporting functions.

40. In further written submissions on this issue the Applicant submitted as follows:

(a)   The Applicant repeats its position that Australia is a signatory to the major human rights treaties which contain a right to a remedy. These treaties, which Australia has voluntarily entered into, set out in Australia’s international human rights obligations. Under international law, Australia is bound to comply with their provisions and to implement them domestically.

(b)   Domestic conflicts arising from Federal/State relations cannot be used as an excuse for failure to implement obligations under international treaties. Following Article 27 of the Vienna Convention on the Law of Treaties of 1969, which governs the rules for the observance and interpretation of treaties which are binding on Australia, a state cannot use the provisions of its own law or deficiencies in that law to answer a claim against it for breaching its obligations under international law.

(c)   The Respondent’s position is effectively that while an international obligation may be owed by the Commonwealth as the consequence of an act of ratification, that this is not incorporated into domestic law, or state law. Accordingly, the Respondent’s position is that there is no recourse available in circumstances where there has been a violation of international law at State or Commonwealth level.

(d)   Such a position leaves the victims of human rights abuses without any options for remediation of the losses suffered, in violation of Australia’s international human rights obligations at set out in the Applicant’s earlier submissions.

(e) It therefore remains the Applicant’s position as set out at [54] that the GIPA Act should be interpreted to give effect to Australia’s international law obligations. This does not require reading words into statute, but merely requires that where GIPA confers a discretion on decision makers that the discretion should be exercised with regard to Australia’s international law obligations.

(f)   Australia is bound by Article 19 of ICCPR. Article 19(2) embraces a right of access to information held by public bodies. The UN Human Rights Committee’s (HRC) general comment on Article 19 at [19] states that “Authorities should provide reasons for any refusal to provide access to information”. No such reason has been given for refusal in this case. Further, the HRC states that where there are restrictions on information, that such restrictions must be “necessary” for a legitimate purpose [33], and must not be “overbroad” conforming to the principle of proportionality [34]. At [35] the HRC sets out the requirement for the restriction of freedom of expression stating that: “it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.” The restriction on the release of information from the Commission does not meet the standards set by the Human Rights Committee under the ICCPR. (The Respondent draws attention to Article 19(3) which provides an exemption for material security.)

(g)   In relation to the Respondent’s second point that “there is no constructional choice which could be resolved by international law” – the Applicant’s position is that international law commitments are plainly issues that should go to the consideration of any public interest balancing exercises under GIPA.

(h)   Further, the Applicant disputes the further points made in relation to international law:

(i)   The Applicant’s position does not require evidence of a breach of international law – it simply states that Australia’s international law commitments should lead the relevant law to be interpreted and applied consistently insofar as possible a to give effect to Australia’s international law obligations;

(ii)   The relevant international laws are clearly set out and this includes the interim report of the Special Rapporteur that clearly states that Australia’s obligations under CAT cannot be territorially limited, accordingly the Applicant rejects the position taken that “the instruments do not require redress for extraterritorial criminal acts”; and

(iii) KS was killed in a coalition airstrike and he was sanctioned under the Charter of the United Nations Act and UNSC Resolution 1373. The international instruments are clearly relevant to the question of asset seizure. The Applicant therefore rejects the position taken by the Respondent.

Consideration

41. It is well established and accepted by the Tribunal that the term “relates to” as it is used in the definition of “excluded information” in the GIPA Act has a broad meaning. In Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 at [77] the Appeal Panel, having reviewed a number of authorities, concluded:

We consider the term “relates to” as it is used in the definition of “excluded information” in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament’s intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to “open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure” (GIPA Act, s 3(1)(c)). The use of the term “relates to” indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG’s complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2).

(See, too, as an example, Coppock v Willoughby City Council [2021] NSWCATAD 166 at [77] – [78].)

42. By “broad connection” as described in Beregi above it is to be accepted that it is not necessary that the relationship be direct or substantial, but that an indirect and less substantial connection will suffice. That view is reinforced in the current context by the submissions of the Respondent set out at paragraph 26 above by reason of the nature of the agency and its functions concerned with criminal activity, in some cases of a very serious kind. The principal functions of the Commission as set out in s 10 of the Commission Act further reinforce this conclusion.

International Obligations

43. For this argument the Applicant relies on a range of international treaties.

44. In DRJ v Commissioner of Victims Rights [2019] NSWCATAD 195 her Honour, Judge Cole, Deputy President of the Tribunal, analysed in detail the question of whether international treaty obligations should inform an analysis and application of NSW law. I respectfully adopt her Honour’s analysis for the purposes of this decision (at [104] to [120]).

45. Her Honour emphasised that an application of the kind presently before the Tribunal is a merits review calling for the Tribunal to conduct an administrative review to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law as required by s 63 of the ADR Act.

46. In this case, the question of whether the information the subject of the access application is excluded information, or not, is not a discretionary judgment. It requires a finding or conclusion as to whether the application was valid. That question requires in this application an application of established interpretations as to the terms “relates to”, the broad approach to how “functions” should be interpreted and to apply those interpretations to the specific statutory functions of the Respondent. Next it is necessary to decide whether the requisite relationship exists between the documents sought and those functions.

47. In my view there is no ambiguity to be resolved and no discretionary judgment involved in that exercise.

48. It is not open to the Tribunal in the exercise of its review obligations to consider what are, or are not, Australian Commonwealth obligations in relation to international treaties so as to inform a different approach to that authorised above. Nothing in the GIPA Act supports such an outcome.

49. The GIPA Act is not an act concerned with victim compensation. Any treaty obligations in respect of redress for victims of crimes such as torture and other serious crimes is a separate matter.

50. The Tribunal accepts the Respondent’s submissions that there are no constructional choices which could be resolved by recourse to international law as the interpretation of the GIPA Act requires consideration of its text, context and purpose. There is no admissible extrinsic evidence identified which is capable of assisting in the ascertainment of the meaning of the provision for the construction supported by the Applicant.

51. The Tribunal also accepts the submission by the Respondent that the Applicant agitates for a conclusion that the application be treated as valid based on international law, notwithstanding that there is no explanation for the basis upon which such a conclusion should be reached. In addition, there is nothing pointed to in the international instruments relied upon requiring that an invalid application for information be treated as valid.

52. The Tribunal does not accept that there is any breach of international law in the application of the legislative provisions in the GIPA Act to the facts of this case.

53. The Tribunal rejects the submission by the Applicant that the position as outlined above leaves the victims of human rights abuses without any options for remediation of the losses suffered. Such a conclusion cannot without more be accepted. Whether remedies are available, or not available, is not a factor to be considered in the task required of the Tribunal. Contrary to the Applicant’s submissions this approach does not frustrate the statutory purpose of the definitions of “excluded information” in the GIPA Act.

54. Further, in my view, there is no question of disproportionality arising between the GIPA Act and any international obligations on the Commonwealth as contended for by the Applicant.

55. The submissions should further be rejected in circumstances where the GIPA Act is not an Act directed at redress for victims of human rights abuses.

56. The contention that ‘the public has a right to know’ also cannot be accepted in light of cl 6 of Schedule 1 quoted above.

57. In respect of Article 19 of the ICCPR relied upon by the Applicant which requires authorities to provide reasons for any refusal to provide access to information the Tribunal notes that the Respondent in rejecting the application as an invalid application stated, albeit in brief terms, the basis of its decision. The review conducted by the Information and Privacy Commission went into significant detail as to why the earlier decision should be accepted.

58. The submission by the Applicant that the international law commitments are issues that go to the consideration of any public interest balancing exercise under the GIPA Act also cannot be accepted. Where there is an invalid application there is no consideration of any public interest balancing exercises under the GIPA Act to be performed.

43. For completeness, the extracts from her Honour’s judgment in the DRJ decision referred to by the Applicant do not further her case.

44. In relation to the submissions concerning what is argued to be the conclusion of an investigation the better view is that the status of any investigation does not bear on the outcome. The Applicant’s submissions are premised on the contention that because assets have been signed or forfeited by reason of an order of the Supreme Court it changes the nature of the information sought so as to release the documents from being “excluded information”. I am not able to identify any direct or contextual basis in the GIPA Act to suggest that contention.

45. In my view the GIPA Act, and in particular, the link between “excluded information” and invalidity of an application concerning excluded information does not operate in that way.

46. It should also not be assumed that by reason of an order forfeiting assets that an investigation is concluded or that information gathered to support the making of such an order cannot support further investigations into other conduct and assets which may come to light.

Category 1 Document

63. The documents in this category sought by the Applicant are those relating to freezing, or seizing or confiscation of assets of the designated person (KS). There is then listed 8 categories of documents included in the category but the list is not exhaustive.

64. The first point to make is that the access sought is defined in a wide manner, namely, documents “relating to” either one of the three identified outcomes, freezing, seizing or confiscation. The phrase “relating to” is to be given a wide interpretation.

65. The second point to note is that the documents should relate to what is said to be Australia’s freezing, or seizing, or confiscation of assets.

66. The third point to note is that the documents need only relate to one of the three outcomes, either freezing, or seizing, or confiscation to be within the scope of the request.

67. The issue thus is whether the documents in this category, which relate to Australia’s either freezing, or seizing, or confiscation of assets, are documents which relate to the Respondent’s investigative and reporting functions.

68. The Respondent does not freeze, seize or confiscate assets.

69. The legislation relied upon by the Respondent dealing with the statutory functions and powers the Respondent makes clear that it is not the Respondent that freezes, or seizes, or confiscates the assets of the designated person. In order for that outcome to be achieved, an application has to be made to the Supreme Court and the Court must make the relevant order.

70. The CAR Act sets out in some detail the process that needs to be followed in order for the Supreme Court to make any one or more of the available orders under the CAR Act.

71. What is clear, however, is that where the Respondent is seeking an order with that outcome from the Supreme Court it must satisfy the conditions for the making of an order. Thus, for example, under s 22 of the CAR Act the Court must find that it is more probable than not that the person whose suspected serious crime related activity formed the basis of the application for the order in the stipulated period engaged in a crime of the kind referred to.

72. The Respondent will bear the onus of satisfying the Court of each of these preconditions and to do so at the requisite standard of proof (see, for example, NSW Crime Commission v Hindmarch [2019] NSWSC 1801).

73. It will also be necessary to identify the relevant assets to be forfeited. In order to do so it is clear that the Respondent would need to exercise its investigate functions and powers in order determine what assets are to be the subject of any order, who has interests in those assets and where they are located.

74. It may be that prior to seeking a forfeiture order a freezing order is attained. Once again, that could only be achieved through an investigative process.

75. It is also clear that the Respondent would have had to conduct an investigation, or investigations, to gather evidence to present to the Court to achieve the outcome sought, namely, the forfeiture of assets. It is tolerably clear that in order to do so there is likely to have been brought into existence documents of the kind set out in the 8 categories listed brought into existence. However, any document relating to the investigations giving rise to seizure or forfeiture of assets is caught.

76. Mr Nathan Leivesley, the solicitor in the employ of the Respondent, deposed in his affidavit that in practice, the Respondent is organised by Divisions. Relevantly to this application for information, those Divisions include the Criminal Investigation Division (CID) and the Financial Investigation Division (FID).

77. The CID is responsible for the criminal investigation functions under the Commission Act. The CID is responsible for conducting and working with other investigative agencies, such as the NSW Police Force. The CID provides technical assistance, surveillance, digital forensics and electronic surveillance support to investigations. In short, the entire functions of the CID are investigative.

78. The FID performs the Commission’s investigative functions under the CAR Act, and commences the confiscation process through the Supreme Court. The Commission employs forensic accountants and financial analysts in the FID who specialise in tracing proceeds of crime and identify assets held by, on or behalf of, persons suspected of criminal misconduct.

79. When the Supreme Court has made a confiscation order, in the case of an assets forfeiture order, the property is forfeited to the Crown and vests in the NSW Trustee and Guardian on behalf of the Crown. The FID will liaise with the NSW Trustee and Guardian in relation to the sale of assets and remitting the sale proceeds to NSW Treasury.

80. Mr Leivesley stated, in effect, that the different Divisions he identified would only hold information of the kind sought for, or resulting from, investigative purposes. In particular he stated that if the information is held by the FID in relation to the CAR Act proceedings, the information would directly relate to an investigation conducted by the Respondent. The central action involved in any proceeding commenced under the CAR Act is the furnishing of an affidavit deposing to suspicions held by staff of the Commission based on the gathering and analysis of investigative material to the Supreme Court, which triggers obligations on the Court to make orders under the CAR Act. The evidence prepared for such proceedings directly describes the investigative actions of the Commission. The Tribunal accepts this evidence from Mr Leivesley.

81. The Tribunal accepts the submission by the Respondent that to extent that the access application seeks information preceding the commencement of proceedings, the information is at the core of the Respondent’s investigative functions. The Tribunal also accepts the submission that proceedings brought by the CAR Act are a core product or a direct consequence of the investigations carried out by the Respondent. The Tribunal further accepts the submission that investigative functions do not necessarily cease when proceedings are commenced or concluded as the Respondent is not thereafter precluded from continuing to further investigate and obtain further information including by way of its coercive information gathering powers.

82. The Tribunal is satisfied and it finds that the documents in category 1 relate to the investigative and reporting functions of the Respondent. I am satisfied the documents relate to the seizure, or forfeiture, or confiscation of assets by order of the Supreme Court. I am satisfied that documents of the kind sought in category 1 are created within the investigative and reporting functions of the Respondent and that the requisite relationship exists between the documents sought and the investigative and reporting functions of the Respondent. The relationship, in my view, is reasonably direct. If, however, a broader approach to investigative and reporting functions is adopted as I refer to above, I am firmly of the view that the relationship comfortably satisfies the test.

83. I do not accept the submission of the Applicant that the documents in category 1 relate to the property identification, confiscation and debt recovery aspects of the Commission’s work rather than investigation function. The freezing, seizing or confiscation orders cannot be achieved without the Respondent having performed its investigative and reporting functions to achieve such an outcome. Without having carried out those functions the Respondent would not be in a position to approach the Court, or the Court being in the position to make the requisite orders.

84. My satisfaction as to the requisite relationship is reinforced because the information sought is expressly stated to be information “relating to” one of the three possible outcomes, freezing, seizure or confiscation of assets. I am satisfied that documents relating to such an outcome are within investigative and reporting functions of the Respondent.

85. It is not relevant that the scope of the information sought is said to be narrow, although for the reasons set out above that contention is not accepted. The contention that the application is highly unlikely to be prejudicial to any ongoing investigation as set out in ground 1 is speculative but in any event irrelevant to the determination of the question of whether the information sought is “excluded information”.

86. As to the second ground relied upon by the Applicant the public interest considerations raised by the Applicant in this ground do not come into consideration in the determination of what is “excluded information”. Moreover, as quoted above the GIPA Act expressly provides the presumption of an overriding public interest against disclosure of this information.

87. I do not regard it as relevant that KS is understood to be dead. I also do not regard it as relevant that information of the kind sought has been publicly disclosed as it is still excluded information under the GIPA Act, unless there is evidence of the Respondent having consented to its disclosure which is not the case here (see Hooper v Willoughby City Council [2021] NSWCATAD 208 at [100]).

Category 2

88. This category seeks documents containing information regarding property ownership by the NSW Trustee and Guardian, the Respondent, or any NSW government entity of property previously owned by KS in NSW.

89. In order to assess the requisite relationship between this category and the functions of the Respondent it is necessary to appreciate the process by which property is forfeited and, as a consequence, interest in the property no longer vests in the previous owner.

90. As outlined above the interest of that person in the property is forfeited to the Crown in the event that the Supreme Court makes a forfeiture order. That interest then vests in the NSW Trustee and Guardian.

91. That outcome is, as explained above, the result of the Respondent carrying out its investigative and reporting functions leading to satisfying the Supreme Court that an order should be made. Part of that process will be to identify the assets to be forfeited.

92. I do not accept the submissions of the Applicant that the documents in category 2 about the property previously owned by KS is information that is relevant to the property identification, confiscation and debt recovery aspects of the Commission’s work rather than any investigation into KS.

93. In relation to category 2 documents I am of the view that the position is no different than in relation to category 1 and that the requisite relationship between the documents sought and the investigative and performing functions of the Respondent are satisfied so as to exclude the information.

Category 3

94. The documents in category 3 held by the NSW Crime Commission that are relevant to proceedings to confiscate assets or property of KS pursuant to the CAR Act do, for the reasons I have explained above, in my view relate to the investigative and performance functions of the Respondent. The position in this category is in substance no different than set out in respect of category 1.

95. In this regard the Applicant submits that these documents relate to an investigation that has been resolved and therefore they fall outside the scope of the investigative and reporting functions of the Respondent.

96. The Applicant appears to rely upon the decision of the Tribunal in Beregiv Department of Planning, Industry and Environment [2019] NSWCATAD 253, in particular, the first sentence of paragraph [27] in the Beregi decision at first instance. That paragraph reads as follows:

I am of the view, contrary to the submissions of Ms Beregi, that the complaint handling and investigative functions of the Respondent encompass matters from the receipt of a complaint up to and including its resolution. These functions will include the broad complaint handling powers in section 430 of the Local Government Act and extend to the more serious functions concerning the suspension of a council, the making of a Performance Improvement Order and to the very serious undertaking of the conduct of a public inquiry into allegations against a council or councillors. I do not agree with Ms Beregi’s submission that use of the information in the course of the Public Inquiry by Mr Howard means that the information was no longer related to any function of the OLG. In my view, such a secondary use of the information does not remove its fundamental character as information of the relevant kind. Such a view is in accordance with the broad interpretation which has been given to the term information that relates to the complaint handling and investigative functions conferred by or under any Act on OLG.

97. As pointed out above the Respondent submits that the first sentence of the paragraph only describes the functions of the agency and not when information ceases to “relate to” the functions. The Respondent also submits that in that case the inquiry had concluded and the information had even been used for a secondary purpose. I accept the Respondent’s submissions in this regard.

98. As I pointed out above I also accept the submission on the part of the Respondent that the term “relates to” in this context does not require an immediate temporal relationship.

Conclusion

99. Accordingly, for the reasons set out above the Tribunal is satisfied that the access application could not be made to the Respondent for the information sought as that information was “excluded information” of the Respondent. As a result the application for that “excluded information” was not a valid application in respect of all the documents sought and the decision of the Respondent of 8 June 2021 is affirmed. The application for review is dismissed.

**********

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: 11 March 2022