State of New South Wales v Avakian (No 2)

[2021] NSWSC 677

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Avakian (No 2) [2021] NSWSC 677

Hearing dates:

20 April 2021

Date of orders:

17 June 2021

Decision date:

17 June 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Dismiss the plaintiff’s notice of motion filed 17 March 2021.

(2) The plaintiff is to pay the defendant’s costs.

(3) The publication restriction in respect of State of New South Wales v Avakian (Preliminary) [2021] NSWSC 245 is lifted.

(4) Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

Catchwords:

HIGH RISK OFFENDER – non-publication order sought by State of NSW – order sought in relation to identification of members of High Risk Offenders Assessment Committee - where provisions of Crimes (High Risk Offenders) Act point against orders being made – where no evidence of threats or risk of harm to members of Committee – where open discussion not inhibited – where nothing in CHRO Act or Government Information (Public Access) Act provides for confidentiality – plaintiff’s notice of motion dismissed

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW) Schedules 1 & 2

Federal Court of Australia Act 1976 (Cth) s 50

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 7, 8, 10

Crimes (Administration of Sentences) Act 1999 (NSW) s 194

Crimes (High Risk Offenders) Act 2006 (NSW) ss 21A, 24AA, 24AB, 24AC, 24AE, 24AF, 24AG. 25D

Cases Cited:

AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

Attorney-General of NSW v Huckstadt (No 2) [2017] NSWSC 595

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

State of New South Wales v Avakian (Preliminary) [2021] NSWSC 245

State of New South Wales v Biber (12 February 2021, Supreme Court of NSW, Button J, unrep).

State of New South Wales v Wilmot [2019] NSWSC 1002

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Danny Avakian (Defendant)

Representation:

Counsel:
S Climo (Plaintiff)
G Lewer (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2020/285069

Publication restriction:

Nil

Judgment

1. The State of New South Wales moves by notice of motion filed 17 March 2021 for an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CSNO Act) on the grounds referred to in s 8(1)(c) and (e), that there should be no publication of the names of, or any information that may tend to identify, the chairperson or attendees identified in the document entitled “Minutes HROAC – August 2020”, being pages 1 to 9 of exhibit DE-1 to the affidavit of Diane Elston affirmed 5 March 2021. The HROAC is the High Risk Offenders Assessment Committee (the Committee). The affidavit was one relied upon by the defendant to resist the imposition of an Interim Supervision Order (ISO).

2. The application was initially made orally at the commencement of the hearing seeking the ISO. At the time, I made an interim order under s 10 which prohibited publication of the information in the document disclosed by the State to the defendant on 22 February 2021 and 4 March 2021 entitled “Minutes HROAC – August 2020”. I made directions for the filing of a notice of motion, affidavits and submissions. Although counsel for the defendant was unclear at the time whether the defendant had any interest in the matter, subsequently affidavits have been filed and served by both parties. The defendant’s position is that he opposes the order being made.

3. On 18 March 2021 I published my judgment dismissing the State’s application for an ISO: State of New South Wales v Avakian (Preliminary) [2021] NSWSC 245. I did not refer in that judgment to any of the persons in respect of whom the non-publication orders are now sought, because it was not necessary to do so. Nevertheless, the State indicated that it wished to pursue the present application. Ms Climo of counsel for the State said that while the application was not being run as a test case, the issue had broader implications and was likely to be agitated on an ongoing basis if a decision was not now made.

4. The State relied on an affidavit of Sandra Crawford, the Assistant Commissioner of Community Corrections of Corrective Services NSW. Much of the affidavit was in inadmissible form even allowing for the fact that the application was an interlocutory one. Paragraphs 13 to 16 and 18 were read as submissions only.

5. The State also relied on an affidavit of Kelli Grabham affirmed 29 March 2021. Ms Grabham is the High Risk Offenders Applications and Operational Governance Officer with the Extended Supervision Order Team.

6. The defendant relied on an affidavit of Diane Elston, a senior solicitor at Legal Aid. The affidavit annexed various documents in the public arena identifying a number of members of the Committee.

7. Two matters were raised by Assistant Commissioner Crawford’s affidavit. The first concerned the safety of members of the Committee, given the nature of the work the Committee does, having regard to the persons about whom decisions are made. This safety aspect was also dealt with by Ms Grabham. The second matter was an assertion that publication of their names and expressions of opinion would have the effect of limiting the expression of full and frank views, and inhibiting discussion and debate between members of the Committee.

8. The Committee is established and constituted by the provisions of Pt 4A of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHROA). Section 24AB provides:

24AB Establishment and membership of Assessment Committee

(1) There is to be a High Risk Offenders Assessment Committee.

(2) The Assessment Committee is to consist of the following members:

(a) the Commissioner of Corrective Services NSW, or a nominee of the Commissioner, who is to be the Chairperson of the Committee,

(b) another representative of Corrective Services NSW, nominated by the Commissioner of Corrective Services NSW,

(c) a representative of the Department of Family and Community Services, nominated by the Secretary of that Department,

(d) a representative of Housing NSW, nominated by the Secretary of the Department of Family and Community Services,

(e) a representative of Ageing, Disability and Home Care, nominated by the Secretary of the Department of Family and Community Services,

(f) a representative of the Justice Health and Forensic Mental Health Network, nominated by the Chief Executive of that Network,

(g) a representative of the Department of Justice, nominated by the Secretary of that Department,

(h) a representative of the NSW Police Force, nominated by the Commissioner of Police,

(i) a representative of the Ministry of Health, nominated by the Secretary of that Ministry,

(j) such other members as the Minister may appoint to represent public sector agencies or other organisations that the Minister considers to have a relevant expertise or involvement in the provision of services in connection with the management of risk and supervision in the community of high risk offenders,

(k) such other members as the Minister may appoint on the basis of relevant expertise in connection with the management of risk and supervision in the community of high risk offenders.

(3) The regulations may make provision for or with respect to the constitution and procedure of the Assessment Committee.

9. The functions of the Committee are set out in s 24AC as follows:

24AC Functions of Assessment Committee

The Assessment Committee has the following functions:

(a) to review the risk assessments of offenders and make recommendations to the Commissioner of Corrective Services NSW for the taking of action by the State under this Act in respect of those offenders,

(b) to facilitate co-operation between and the co-ordination of relevant agencies in the exercise of their functions in connection with risk assessment and management of offenders who are subject to this Act (the high risk offender functions of relevant agencies),

(c) to monitor and provide expert oversight of the exercise of the high risk offender functions of relevant agencies for the purpose of identifying opportunities for improved outcomes in individual cases and opportunities for systemic improvement and removal of inter-agency barriers to the effective exercise of high risk offender functions,

(d) to facilitate information sharing between relevant agencies in connection with the exercise of their high risk offender functions,

(e) to develop best practice standards and guidelines for the exercise by relevant agencies of their high risk offender functions,

(f) to identify gaps in resourcing, service provision and training that may impact on the proper and effective exercise of high risk offender functions,

(g) to conduct research into the effectiveness of this Act in ensuring the safety and protection of the community and to disseminate the results of that research,

(g1) to exercise the functions that are conferred or imposed on the Assessment Committee by or under the Terrorism (High Risk Offenders) Act 2017,

(h) such other functions in connection with the operation of this Act as the Minister may from time to time direct.

10. Section 24AE provides that the Committee must keep the Minister informed of its operations and, if the Minister requests the Committee to provide information about a specific matter, the Committee must comply with that request. Sections 24AF and 24AG concern the exchange of information between agencies, including providing information concerning offenders.

Legal principles

11. Section 7 of the CSNO Act gives the Court power to make a suppression order or a non-publication order on the grounds identified in s 8 of the Act, to prohibit or restrict the publication of information tending to reveal the identity of any person who is (inter alia) a party to the proceedings, or is a person related to or otherwise associated with such a party. As I have said, the present application is put on the basis of the grounds contained in s 8(1)(c) and (e) which provide:

(c)   the order is necessary to protect the safety of any person,

(e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

12. Section 6 requires the Court to take into account:

that a primary objective of the administration of justice is to safeguard the public interest in open justice.

13. In Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Bathurst CJ and McColl JA said at [27]:

The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act ) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).

14. In Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21, the High Court was dealing with s 50 of the Federal Court of Australia Act 1976 (Cth) which relevantly provided:

The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

15. The High Court said of this provision at [31]:

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

16. When discussing the meaning of the word “necessary”, Bathurst CJ said in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8] that it is not sufficient that orders are merely reasonable or sensible. Even if that were the appropriate test when considering s 8, regard would still need to be had to the mandatory requirement in s 6, that a primary objective of the administration of justice is to safeguard the public interest in open justice. That, as the Court of Appeal said in Rinehart v Welker, means that orders under the CSNO Act should only be made in exceptional circumstances.

17. In State of New South Wales v Wilmot [2019] NSWSC 1002 at [24], Lonergan J helpfully summarised the important principles for applications such as the present;

For present purposes, the following principles may be distilled from the authorities concerning the operation of the Suppression Act:

1)   The starting point is consideration of the public interest in open justice which is the primary objective of the administration of justice.

2) In s 8(1) of the Suppression Act, “necessary” identifies a standard as to which the Court must be satisfied before making an order.

3)   The applicant has to prove on the “balance of probabilities” that the order sought is necessary.

4)   The test of necessity requires a high degree of certainty.

5)   The question of necessity depends on the strength of the evidence called in support.

6)   An order will not be “necessary” if it is simply convenient, reasonable or sensible or to serve some notion of the public interest. Mere belief that the order is necessary is not sufficient.

7)   The order must have utility and must not be futile.

8) In circumstances comparable to an application relying on s 8(1)(c) of the Suppression Act, the test has been stated as whether, on the evidence, the Court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

18. In relation to s 8(1)(c), in AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46, the Court of Criminal Appeal was considering an appeal from a refusal of a District Court judge to make a non-publication order in respect of the applicant who had been convicted of child sex offences. The application was made upon the ground contained in s 8(1)(c) of the Act.

19. The joint judgment of the Court (Hoeben CJ at CL, Price & Adamson JJ) said:

[56] The authorities have considered two possible approaches to the interpretation of s 8(1)(c), the so-called “calculus of risk” approach and the “probable harm” approach. The calculus of risk approach requires the court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility. The second postulated interpretation, the probable harm approach, requires an applicant to prove that, in the absence of an order, it would be more probable than not that the relevant person would suffer harm. The calculus of risk approach has been specifically adopted in AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6 at [14] (Nettle J); Hamzy v R [2013] NSWCCA 156 at [60] (Harrison J) and Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 at [16]-[17] (Besanko J). The question of which approach was the correct one did not need to be decided in D1 v P1 at [55] (Bathurst CJ, McColl JA and McClellan CJ at CL agreeing).

[57] The differences between the two approaches can be illustrated by the following example. The probable harm approach would require an applicant to prove that death threats made to him or her would be likely to be carried out. Under the calculus of risk approach the nature of the harm (death) would carry weight in the calculus of risk which would have the effect that it would not be necessary for the court to be satisfied that it was probable that the threats would be carried out. The fact that the possible harm was so serious would lead to the court’s being satisfied under s 8(1)(c) that an order was necessary in circumstances where it could not be said to be probable that the threats would be carried out.

[58]   We regard the statement extracted from Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim at [46] as consistent with the calculus of risk approach. We do not consider the second approach to be consistent with the words of s 8(1)(c). The evident purpose of s 8(1)(c) is to provide a mechanism to protect the safety of persons who would otherwise be endangered by publication of proceedings in accordance with the principles of open justice. This purpose is more effectively advanced by the calculus of risk approach which is, therefore, to be preferred: s 33 of the Interpretation Act 1987 (NSW). As Nettle J said in AB (A Pseudonym) v CD (A Pseudonym) at [15]:

“The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of ‘necessary to protect the safety of any person’ that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.”

The bases for the application

20. The State’s application was put on three bases. The first, in reliance on s 8(1)(c) of the CSNO Act, was that the safety of the Committee members would or might be at risk if their names were known, particularly if their names were attached to views expressed by them as recorded in the minutes of the Committee. The second basis was that disclosure of the names would have the effect of limiting the expression of full and frank views, and inhibiting discussion and debate between the Committee members. This basis was put forward principally under s 8(1)(e) of the CSNO Act, but for reasons given later, it is likely also to concern s 8(1)(c). A third basis was said to be the expectation that the members held, that records of the meetings would be kept confidential, or at least that their names would not be attached to their views expressed in the meetings.

Determination

21. The starting point here is the legislation establishing the Committee. The members of the Committee are appointed pursuant to the power contained in s 24AB of the CHROA. The Committee must provide information to the Minister, and may also provide it to one or more of the agencies listed in s 24AA. Nothing in Part 4A of the CHROA suggests that the identity of the Committee members or the deliberations of the Committee are to be kept confidential. That is to be contrasted with the express confidentiality provisions in ss 21A (concerning victim statements) and 25D (concerning expert reports). Indeed, the permitted use of the expert reports in the circumstances outlined tends against the argument by the State on the present application: see also in a slightly different context what was said by Adamson J in Attorney-General of NSW v Huckstadt (No 2) [2017] NSWSC 595 at [50] to [52].

22. Moreover, s 15(2) of the CHROA provides:

The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence):

(a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and

(b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available.

23. Arguably, the minutes of the Committee fall within this subsection. It is difficult to see why those minutes would not be relevant to the proceedings. There may be some doubt about whether the Court can take the views of the Committee (or any Sub-Committees) into account (see Avakian at [100] to [104]), but the minutes may be relevant even if not tendered (as subs (2)(a) allows). The view that they are relevant is strengthened by the fact that in the present case the Minutes were provided on request by those acting for the defendant.

24. Accordingly, the provisions of the CHROA point fairly strongly against any suggestion that non-publication orders should be made. That conclusion is, of course, subject to the applicant demonstrating that an order is “necessary” for any of the reasons in s 8 of the CSNO Act, but that conclusion also erects something of a hurdle to be overcome in respect of paragraph 8(1)(e).

25. It is also of some significance that the CHROA is not included in Schedule 1 to the Government Information (Public Access) Act 2009 (NSW) (GIPA), nor is the Committee listed in Schedule 2 to that Act.

1. Safety of the members

26. In relation to s 8(1)(c), the State accepts that the ‘calculus of risk’ approach is the appropriate one. That requires the Court to consider the nature, imminence and degree of likelihood of harm occurring to the members of the Committee: AB at [56] and [58].

27. The evidence put forward by the State consisted, first, of two paragraphs of Assistant Commissioner Crawford’s affidavit as follows:

8. I believe that should the names of the HROAC members be published, or information that would tend to permit a person to ascertain those names, their safety will be put at risk, due to the particular functions that the members perform. The HROAC performs the functions as set out at section 24AC of the Act and include, pursuant to section 24AC(a) of the Act, the review of the risk assessments of offenders and to make recommendations to the Commissioner for the taking of action by the State under the Act in respect of those offenders. Some of the HROAC members also sit on a Terrorism High Risk Offenders Assessment Committee, to perform similar functions under the Terrorism (High Risk Offenders) Act 2017.

9.   l am aware of certain threats being made by high risk offenders to Corrective Services NSW staff in the past and should the Court require further detailed evidence in this regard, a further affidavit can be provided.

28. No basis was given for the Assistant Commissioner’s belief that the safety of members would be put at risk, except as a result of the work the Committee performs.

29. Subsequently, and presumably in furtherance of paragraph 9 of that affidavit, Ms Grabham’s affidavit annexed four Operations Integrity Management System (OIMS) notes which recorded instances of assaults and/or threatening behaviour by persons the subject of ESOs. Two things should be said about this evidence.

30. First, Ms Grabham agreed in cross-examination that she had been asked to “obtain information in regard to ESO offenders who had made threats of harm towards members of the department”. The request was not limited to any timeframe as far as the threats were concerned. Ms Grabham agreed that at the time of her inquiries there were 137 persons subject to an ESO, and that the CHROA had been in operation since 2006.

31. It was submitted by the defendant that if there had only been four such cases in 15 years, the risk was a low one. As it happened, I had presided over an ESO application shortly prior to the present case where there was evidence of threats made to a supervising officer by an offender, and that matter was not one of the four Ms Grabham detailed in her affidavit. Nevertheless, the four cases put forward by the State were not put forward as examples only. Counsel for the State accepted that although Ms Grabham had not reviewed all offenders, she had reviewed those on ESOs. However, even if a few were missed, there is force in the defendant’s submission that the risk of harm is low.

32. Moreover, one only of the four identified cases involved an assault, and that assault was constituted by spitting. The remaining matters involved verbal threats, including in respect of the Commissioner of Corrective Services (although only by publishing a book about him) and a prison officer.

33. The second and more significant matter is that the assault and threats (apart from the ones mentioned in the preceding paragraph) were directed at Departmental Supervising Officers. These are the frontline staff who deal with the offenders on a regular basis. It is scarcely surprising, although not in any way excusable, that frustration and anger on the part of offenders is directed towards those who have the immediate oversight of them, and whose directions they must follow, and to whom they must report most aspects of their closely supervised lives.

34. There is simply no evidence of any threats or risk of harm to the members of the Committee.

35. Many people occupy positions in public life by reason of their occupations, which involve them making decisions that affect people who come into contact with the criminal justice system. Police, prosecutors, magistrates, judges, members of the Crime Commissions, ICAC Commissioners, members of the Parole Board, even defence counsel if people are convicted, are all at risk at various times, and most have no doubt received threats of some sort.

36. In relation to high risk offenders, the members of the Committee perform a number of functions set out in s 24AC of the CHROA including making recommendations to the Commissioner of Corrective Services for making applications under the Act. Whether an application is brought depends on the advice and decisions of a number of different people including the Crown Solicitor, counsel briefed, and the Attorney General. It is ultimately a judge of this Court who makes the decision. The risk to any of these people is no more or less (although in the judge’s case, probably more) than any risk to the members of the Committee.

37. Nothing in the evidence suggests that there is any risk to the safety of the members of the Committee, let alone that any order is necessary (as that term has been interpreted in the authorities) to protect the safety of any person.

1. Discussion inhibited

38. The second basis for non-publication is the suggestion that if the particular views and opinions of members are known, this will somehow restrict full and frank discussions at meetings. In that way, it is suggested that the public interest in such full and frank discussions significantly outweighs the public interest in open justice. Counsel for the defendant described this as an extraordinary submission. I do not think that such a description is unwarranted.

39. The members of the Committee took on their positions knowing what the work involved. They have an obligation to undertake that work without restraint or inhibition. I am not suggesting that they do not now do that, but the submission was made that they may not do so if the order sought is not made. There does not appear to me to be any basis for the submission, which appears to be based on an opinion of the Assistant Commissioner, an opinion which itself seems to lack any evidentiary basis.

40. In a sense, this basis for non-publication must be related to the issue of the safety of the members, because it is difficult to see what other reason there could be for any feelings of inhibition about full and frank discussion of offenders.

41. There is no evidence that any member, including the Assistant Commissioner, believed that the work of the Committee was to be carried out in any confidential way, so that the realisation that it was not, somehow inhibited them from properly performing their responsibilities on the Committee.

42. To the extent that it is asserted that there is a public interest in a free, robust and open discussion by members of the Committee, nothing has been demonstrated to show that there is anything which prevents such discussion from taking place. In that way, one does not get to the balancing exercise in paragraph 8(1)(e). There is no evidence of any risk of harm to any members of the Committee which might inhibit such discussion. It is not necessary in the public interest for any order under the CSNO Act to be made.

1. Expectation of confidentiality

43. The third basis put forward by the State can be disposed of fairly shortly. Assistant Commissioner Crawford said in her affidavit:

12. The Committee members generally hold an expectation that the records of meetings will be kept confidential.

44. That sentence was objected to, and not pressed. There was no other evidence on the point from the State. Submissions concerning such an expectation were nevertheless made by counsel for the State. What evidence there was on the point from the defendant pointed in the opposite direction. Various publications referred to in Ms Elston’s affidavit contained self-acknowledged membership of the Committee by five of its members. In any event, counsel for the plaintiff submitted that it was not the records of the meeting that were sought to be kept confidential, but the names of the members, and the connection between views expressed at meetings and the member(s) who expressed those views.

45. Even if the matter is tested objectively, there is nothing in the CHROA or the GIPA which could have encouraged any belief or expectation of confidentiality. All members, except those appointed under s 24AB(2)(k), are public servants appointed by senior public servants or the Minister and can be expected to know that the Committee is a statutory committee, and that the legislation establishing it made no provision for confidentiality except in ss 21A and 25D.

46. I reject this third basis as a ground for a non-publication order.

47. The State relied upon a decision of Button J in State of New South Wales v Biber (12 February 2021, Supreme Court of NSW, Button J, unrep). In that matter his Honour made non-publication orders in respect of “some minutes of a committee”, which I infer is the HROAC. It is necessary to set out parts of his Honour’s extempore judgment:

I was asked to make orders by consent in Chambers, pursuant to the Court Suppression and Non-publication Orders Act 2010 (the Act), about some minutes of a committee that I had previously found were not to be the subject of public interest immunity, and were thereafter provided to the legal team of the defendant.

When being asked to make orders in the nature of non-publication, one always has to remember the interests of open justice, not just in a general sense, but in that it is a Parliamentary mandate in s 6 of the Act.

Even so, I think that the Crown Advocate has established that it is necessary in the public interest for the orders sought to be made. I think that, in the unusual circumstances of this case, that public interest significantly outweighs the public interest in open justice. I say that because, perhaps unexpectedly for the members of the committee, if I did not uphold public interest immunity, to coin a phrase, arguably there is a degree of “retrospective intrusion” into the deliberations of persons who did not conceive of the possibility that what they were saying, and what was being recorded, was to be made public,

As well as that, speaking generally, although there is no suggestion of security concerns in this particular case pertaining to the defendant, I think there is an interest in keeping secure, sometimes, the names and identities and roles of persons who make decisions or recommendations about liberty or incarceration.

48. A few things should be noted. First, the orders were made by consent. Secondly, there is no disclosure of the “unusual circumstances of this case”. Thirdly, there is a suggestion that there was evidence from members of the Committee who “did not conceive of the possibility that what they were saying, and what was being recorded, was to be made public”. There was no such evidence in the present matter. Finally, I do not understand what his Honour’s reasons were for thinking that there was an interest in keeping secure the identities of people who make decisions or recommendations about liberty or incarceration. It does not appear to take account of the work of the Parole Authority and the availability of material from that Authority, subject only to s 194 of the Crimes (Administration of Sentences) Act 1999 (NSW).

49. Those matters show that the circumstances in Biber, as far as they can be gleaned, differ considerably from the circumstances of, and the evidence in, the present case.

50. A matter that tells strongly against the need for a non-publication is the fact that five members of the Committee have, at various times, identified themselves as belonging to the Committee. In the face of that evidence I should have expected, if any member had an expectation of confidentiality or some legitimate fear for their safety, that there would have been evidence to that effect. There was no such evidence.

51. Accordingly, I make the following orders:

1. Dismiss the plaintiff’s notice of motion filed 17 March 2021.

2. The plaintiff is to pay the defendant’s costs.

3. The publication restriction in respect of State of New South Wales v Avakian (Preliminary) [2021] NSWSC 245 is lifted.

4. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

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Amendments

17 June 2021 - Hearing date on title page amended

Decision last updated: 17 June 2021