Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Broadbent v Commissioner of Police [2021] NSWCATAD 287 Hearing dates: 20 April 2021 Date of orders: 01 October 2021 Decision date: 01 October 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: S Goodman SC, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – access to government information – access application – conclusive presumption against disclosure – legal professional privilege – documents affecting law enforcement and public safety – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Archer Capital 4A Pty Ltd v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd [2020] NSWCA 126; (2020) 103 NSWLR 772 Colefax v Department of Education and Communities [2013] NSWADT 75 Commissioner of Police v Danis [2017] NSWCATAP 7 Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 Jackson v University of New South Wales [2019] NSWCATAD 224 Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 McMillan v Commissioner of Police, NSWPF; Brady v Commissioner of Police, NSWPF [2013] NSWADT 53 Meacham v Commissioner of Police [2020] NSWCATAP 107 Miskelly v Transport for NSW [2017] NSWCATAD 207 New South Wales v McGuirk [2006] NSWSC 1362 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 Saggers v Environment Protection Authority [2014] NSWCATAD 37 Secretary, New South Wales Ministry of Health v W [2020] NSWCA 212; (2020) 102 NSWLR 969 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Transport for NSW v Searle [2018] NSWCATAP 93 YG v Minister for Community Services [2002] NSWCA 247 Texts Cited: Nil Category: Principal judgment Parties: John Stanley Broadbent (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (self-represented) Crown Solicitor (Respondent) File Number(s): 2021/00009391 Publication restriction: Nil REASONS FOR DECISION Introduction 1. This proceeding concerns an administrative review of a decision of the respondent to refuse the applicant access to particular information concerning Long Range Acoustic Devices ("LRADs") sought by him in an access application under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). Background 1. There is no substantial dispute as to the background facts and the salient facts are set out below. 2. On 20 June 2020, the applicant lodged an access application with the respondent and in early July 2020, the applicant agreed to narrow the scope of that application. The access application, as narrowed, sought: "1. Information specifying the reason for the NSWPF purchase of LRADs found within a Recommendation Report. 2. Criteria for the use of LRADs as found in the Standard Operating Procedures. 3. Information, contained in a document on RMS, about the use and effectiveness of LRAD." 1. On 12 August 2020, the respondent notified the applicant of its decision on the access application, as narrowed. The respondent identified 68 pages in a Schedule of Documents as containing information responsive to the access application and made: 1. a decision under s 58(1)(a) of the GIPA Act to provide the applicant with access with respect to pages 54 to 67, being a Noise Assessment Report; 2. a decision under s 58(1)(d) of the GIPA Act to refuse to provide the applicant with access to the information in the remaining pages because there was an overriding public interest against disclosure of that information on the bases that: 1. for pages 1 to 13 and 17 to 53, there was a conclusive presumption of an overriding public interest against disclosure arising from the fact that the documents were created by the Counter Terrorism and Special Tactics Command ("Command") of the NSW Police Force ("NSWPF"), relying on s 14 (1) and Sch 1, cl 7(b) of the GIPA Act; 2. for pages 14 and 68, there was a conclusive presumption of an overriding public interest against disclosure arising from the fact that disclosure of the information would be privileged from production in legal proceedings on the ground of legal professional privilege, relying upon s 14 (1) and Sch 1, cl 5 of the GIPA Act; and 3. for pages 15 and 16, there was an overriding public interest against disclosure, relying upon s 14 (2) and cl 1(e) of the table in s 14 of the GIPA Act. 1. In early September 2020, the applicant asked the Information and Privacy Commission ("IPC") to review the respondent's decision. The IPC conducted such a review and on 30 October 2020 the IPC published its review report. In that report, the IPC was satisfied with the reasons provided by the respondent for refusing access to pages 1 to 13, 14, 17 to 53 and 68; but was not satisfied with the reasons provided by the respondent for refusing access to pages 15 and 16 and recommended that the respondent reconsider the decision concerning those pages. 2. On 11 November 2020, the respondent notified the applicant of a further decision, in which the previous position taken with respect to pages 15 and 16 was maintained. 3. On 12 January 2021, the applicant filed the application which is presently before the Tribunal. 4. The submissions filed by the respondent with the Tribunal on this application attached an updated Schedule of Documents ("Updated Schedule of Documents"). The Updated Schedule of Documents provided further details of the nature of the documents in respect of which access had been refused. It also indicated that the respondent relied upon the following additional grounds in support of the decision to refuse access to particular documents: 1. s 14 (1) and Sch 1, cl 5 of the GIPA Act with respect to pages 12-13; and 2. s 14 (2) and cl 1(f) of the table in s 14 of the GIPA Act with respect to pages 15-16. Jurisdiction and the Tribunal's task Jurisdiction 1. The respondent's decision to refuse access to information in response to the applicant's access application is a decision which is reviewable by the Tribunal: s 80(d) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act"). The respondent bears the burden of establishing that its decision to refuse access is justified: s 105(1) of the GIPA Act. The Tribunal's task 1. The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is as to whether access should be provided, having regard to the material before it, including relevant factual material and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator. The material before the Tribunal may include material not before the original decision-maker and the Tribunal's decision is focused on the present position, not the position at the time of the original decision: s 63 of the ADR Act; YG v Minister for Community Services [2002] NSWCA 247 at [25]; Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 at [45]; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. 2. In so doing, the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure; or in respect of information which the agency has claimed there is such an overriding interest but for which the Tribunal finds there is not: s 107 of the GIPA Act; University of New South Wales v McGuirk [2006] NSWSC 1362 at [91]. To that end, the Tribunal received into evidence on a confidential basis the information in pages 1 to 53 and 68 and made orders during the hearing to prohibit disclosure of that information. Material before the Tribunal 1. The material before the Tribunal is: 1. an affidavit of Detective Sergeant Kim Reily of the NSWPF, sworn 18 March 2021; 2. an affidavit of Mr Benjamin Urry, a solicitor in the employ of the NSWPF in the Employment and Safety Law Division of the Office of the General Counsel, sworn 18 March 2021; 3. a bundle of documents comprising the access application dated 20 June 2020; an email dated 6 July 2020 concerning the scope of the access application; an email dated 28 July 2020 concerning an extension of time in which to decide the access application; the respondent's Notice of Decision dated 12 August 2020; the applicant's request to the IPC dated 11 September 2020; the IPC's review report dated 30 October 2020; and the respondent's Notice of Decision on the internal review dated 11 November 2020; and 4. a confidential bundle comprising the 68 pages responsive to the access application in an unredacted form. Issues for resolution 1. The issues requiring resolution are: 1. whether a conclusive presumption against disclosure arises with respect to: 1. the information within pages 1 to 13 and 17 to 53, on the basis that these documents were created by the Command; and 2. information within pages 12 to 14 and 68, on the basis that disclosure of that information would be protected from production in legal proceedings on the ground of legal professional privilege; and 1. whether for pages 15 and 16 there is an overriding public interest against disclosure of that information. The applicable law 1. The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 1. Section 9 (1) of the GIPA Act provides: 9 Access applications (1) 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. 1. Section 58 of the GIPA Act deals with how access applications are decided by agencies. Section 58(1)(d) provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.. … 1. As noted above, the respondent bears the onus of establishing that the respondent's decision is justified: s 105 GIPA Act. That means the respondent must, first, identify the information which the respondent contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify the decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52]. 2. In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane: 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. … 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. … 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, … 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. ... 1. Schedule 1 to the GIPA Act contains as far as is presently relevant: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. ... 7 Documents affecting law enforcement and public safety It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents: … (b) a document created by… the Counter Terrorism and Special Tactics Command of the NSW Police Force… 1. Thus it may be seen that the GIPA Act creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 GIPA Act), and the applicant has a legally enforceable right to the government information he seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 GIPA Act). 2. There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure (s 13 GIPA Act). 3. The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) of the GIPA Act). 4. However, absent a Sch 1 consideration against disclosure the Tribunal's task is to consider and weigh in the balance: 1. the public interest considerations in favour of disclosure, which are unlimited and include: 1. the general public interest in favour of disclosure (s 12(1) GIPA Act); 2. the examples listed in the note to s 12(2) of the GIPA Act; and 1. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act. 1. In undertaking this balancing task the Tribunal is entitled to take into account the "personal factors of the application" as factors in favour of disclosure (s 55 of the GIPA Act). The personal factors of the application are described in s 55 as: 1. the applicant's identity and relationship with any other person; 2. the applicant's motives for making the access application; and 3. any other factors particular to the applicant. 1. The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act. In the present case, the respondent does not rely upon any of cll 2, 3, 4 or 5. 2. The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104]. Section 14 (1) and Sch 1, cl 7(b) - creation by the Command claim - pages 1 to 13 and 17 to 53 1. As noted above, cl 7(b) of Sch 1 to the GIPA Act provides: 7 Documents affecting law enforcement and public safety It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents: … (b) a document created by… the Counter Terrorism and Special Tactics Command of the NSW Police Force… 1. The respondent has withheld access to the information on pages 1 to 13 and 17 to 53 on the basis that those pages were created by the Command. These pages are described in the Updated Schedule of Documents as follows: Pages Document 1-11 RMS Document D2019/676456 - Issue: Update to Standard Operating Procedures for Long Range Acoustic Device (LRAD) for use by the Public Order and Riot Squad, 22 July 2019 (attaching revised SOPS) 12-13 Briefing-Amendment to the Standard Operating Procedures for the Long Range Acoustic Device (LARD 100X) under the command responsibility of the Public Order and Riot Squad 17-30 D2019/361279 - "Update to Standard Operating Procedures for LRAD-100X for use by the Public Order and Riot Squad ", 21. 02. 19, attaching draft revised SOPs 31-44 D2019/ 202739- "Update to Standard Operating Procedures for LRAD-100X for use by the Public Order and Riot Squad ", 21. 02. 19, attaching draft revised SOPs 41-53 Standard Operating Procedures - Long Range Acoustic Device (LARD 100X) Evidence 1. The unchallenged evidence of Detective Sergeant Reily was that: (1) she is the Coordinator of the Public Order and Riot Squad ("Squad"), which is part of the Command; (2) the Squad is responsible for the Standard Operating Procedures for the LRADs; (3) the Standard Operating Procedures were created and are updated by the Squad; and (4) each of the documents listed in the above table was created or written by officers of the Squad or the Command. 2. The Tribunal has inspected the documents described in the above table. Having done so, the Tribunal accepts the unchallenged evidence of Detective Sergeant Reily. Consideration 1. On a literal reading of cl 7(b), it applies to information within any document created by the Command. 2. However, the applicant submitted that cl 7(b) should be interpreted in a manner which limits its operation to documents created by the Command and which relate to the Command's role in countering terrorism. The corollary of such an interpretation is that cl 7(b) does not prohibit disclosure of documents created by the Command for other purposes, including the provision of tactical support to general policing in New South Wales. 3. The applicant sought to illustrate his submission by an example in which a written record of an order for morning tea made by the Command would be protected from production in circumstances where there could be no legislative intention to prohibit the production of such benign documents. 4. In construing cl 7(b), the start and end point is its text, considered in its context (including the GIPA Act as a whole, its legislative history and any extrinsic materials) and purpose: see Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd [2020] NSWCA 126; (2020) 103 NSWLR 772 at [112]; Secretary, New South Wales Ministry of Health v W [2020] NSWCA 212; (2020) 102 NSWLR 969 at [63] and the authorities there cited. 5. The text of cl 7(b) does not contain the limitation suggested by the applicant. The only criterion for the operation of the clause within its text is the identification of the creator of a particular document. The particular function being exercised by the creator of the document in creating the document is not specified as a criterion. 6. The immediate context in which cl 7(b) appears, namely cl 7 itself, also provides no support for the applicant's suggested construction, and provides considerable support for a construction that the only criterion is the identification of the creator of a particular document. 7. Clause 7, in its complete form, provides: 7 Documents affecting law enforcement and public safety It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents— (a) a document created by the former Information and Intelligence Centre of the Police Service or the former State Intelligence Group, (b) a document created by the State Intelligence Command or the Counter Terrorism and Special Tactics Command of the NSWPF, the former Counter Terrorist Co-ordination Command of the NSWPF, the former Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence, (c) a document created by the State Crime Command of the NSWPF in the exercise of its functions concerning the collection, analysis or dissemination of intelligence, (d) a document created by the Corrections Intelligence Group of Corrective Services NSW, Department of Justice, in the exercise of its functions concerning the collection, analysis or dissemination of intelligence, (e) a document created by the Security and Intelligence Unit of Juvenile Justice, Department of Justice, in the exercise of its functions concerning the collection, analysis or dissemination of intelligence, (f) a document concerning law enforcement and public safety created by another entity established under a law of another jurisdiction, including a jurisdiction outside Australia, whose functions substantially correspond with an entity referred to in paragraphs (a)–(e), including any entity declared by the regulations to be a corresponding entity for the purposes of this clause. 1. Subclauses 7(a) and (b) are structurally different to subclauses 7(c) to (f). Subclauses 7(a) and (b) specify one criterion, namely that the document has been created by a particular entity. In contrast, subclauses 7(c) to (f) have an additional criterion namely, that the document has been created by that entity in the exercise of a particular function or functions. This is clear evidence of a legislative intention that satisfaction of subclauses 7(a) and (b) does not require that the document has been created in the exercise of any particular function. In other words, had the legislature intended that cl 7(b) be restricted in its operation to documents created by the Command in the exercise of a particular function it would have made this clear in the same way that it did for subclauses 7(c) to (f). 2. As to the wider context, it is not apparent to the Tribunal that there is any other provision in the GIPA Act which supports the narrow construction for which the applicant contends. The Tribunal is conscious of the objects of the GIPA Act as set out in s 3, however these do not provide a mandate to override the clear expression of legislative intention in cl 7 of Sch 1. Nor is it apparent to the Tribunal that there is anything in the legislative history of the GIPA Act or the extrinsic materials which supports the applicant's construction. 3. It follows that cl 7(b) should be construed as requiring that the document in question has been created by one of the entities named in that clause which, for relevant purposes, is the Command. 4. Thus, proof that pages 1 to 13 and 17 to 53 were created by the Command is sufficient to enliven the conclusive presumption that there is an overriding public interest against disclosure of the information contained in those pages. As noted above, the Tribunal accepts that these pages were created by the Command. 5. It follows that there is a conclusive presumption that there is an overriding public interest against disclosure of the information contained in those pages; and that the respondent's decision with respect to those pages should be affirmed. Section 14(1) and cl 5 of Sch 1 – legal professional privilege claim – pages 12-14 and 68 1. As noted above, cl 5 of Sch 1 to the GIPA Act provides as far as is presently relevant: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) unless the person in whose favour the privilege exists has waived the privilege. 1. The pages for which this claim is made are described in the Updated Schedule of Documents as follows: Pages Document 12-13 Briefing-Amendment to the Standard Operating Procedures for the Long Range Acoustic Device (LARD 100X) under the command responsibility of the Public Order and Riot Squad 14 Email from B Urry, Senior Lawyer 68 Office of the General Counsel Instruction Sheet Evidence 1. The unchallenged evidence of Mr Urry concerning the claim of legal professional privilege with respect to these pages is as follows: 1. he is a Senior Lawyer in the employ of the NSWPF in the Employment and Safety Law Division of the Office of the General Counsel ("OGC"); 2. in the usual course, but not always, where a command or unit within the NSWPF wishes to engage the services of the OGC, that command or unit fills out an instruction sheet which is sent to a central OGC email address and is then allocated to an appropriate team within the OGC; 3. access to the files kept within the OGC's document management system is limited to persons employed within the OGC; 4. legal advice provided by the OGC to internal clients within the NSWPF is usually provided in a written form and is treated on a confidential basis; 5. in 2019, the usual practice when advice was provided by email was for the subject line of the email to include a classification as "Sensitive: Legal" and for the footer of the email to include a notation to the effect that the email may contain legal advice subject to legal professional privilege; 6. page 14 is an email that he sent, which refers to a request for legal advice received by the OGC and which sets out legal advice in response to that request. It is a confidential communication that he sent for the purposes of providing legal advice. The email, in the form that he sent it, contained the classification and notation referred to in the previous subparagraph; 7. page 12 is a briefing prepared by an officer of the Command to the commanders of the Command and the Squad, which contains the legal advice that he provided in the email on page 14; and 8. page 68 is an OGC Instruction Sheet, setting out a request from the Squad for the provision of legal advice by the OGC. It is marked "Legally Privileged Communication". It is a confidential communication from the Squad for the dominant purpose of obtaining legal advice from the OGC. It relates to an earlier advice and not to the advice set out on page 14. Consideration 1. The applicant submitted that: 1. legal professional privilege is a fundamental right for a citizen and a citizen is entitled to rely upon the privilege to deny the State access to information which attracts the privilege; 2. cl 5 turns this general principle on its head, with advice given to the respondent being protected from disclosure to the community; and 3. it is in the public interest for the public to be aware of the communications made by the respondent to the respondent's legal advisers. 1. The Tribunal has considered the applicant's submissions. Those submissions, even if correct, cannot overcome the plain words of cl 5, which the Tribunal is bound to apply. Further, legal professional privilege is not available only to citizens and is able to be claimed by agencies. 2. It is not necessary to consider the application of Sch 1, cl 5 to pages 12 and 13 as they are the subject of the conclusive presumption which arises under Sch 1, cl 7(b), for the reasons discussed above. The claim with respect to pages 14 and 68 is considered below. 3. The respondent has addressed the question of privilege by reference to the provisions of the Evidence Act 1995 (NSW) ("Evidence Act"). Such an approach is consistent with Colefax v Department of Education and Communities [2013] NSWADT 75, at [26] and Saggers v Environment Protection Authority [2014] NSWCATAD 37, at [26]. In any event, it does not appear that the application of common law principles would produce a different result in this matter. 4. Section 118 of the Evidence Act provides: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of— (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers providing legal advice to the client. 1. Section 117 of the Evidence Act contains relevant definitions: 117 Definitions (1) In this Division: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) … confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. … 1. The expression "dominant purpose" is not defined in the Evidence Act. In Archer Capital 4A Pty Ltd v Sage Group plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384 at [11], Wigney J stated: A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole (2006) 152 FCR 382 (AWB) at [105]-[106]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Pratt) at [35]. 1. As noted above, Mr Urry is a solicitor in the employ of the NSWPF. In Jackson v University of New South Wales [2019] NSWCATAD 224, Senior Member Higgins provided the following summary of the position where the client is a government agency and the lawyer is employed by that agency: 102. Client legal professional privilege equally applies to confidential communications between government agencies and their salaried legal officers, provided that there existed, at the time of the confidential communication, a relationship of lawyer and client and the requirements of ss 118 and 119 are otherwise satisfied: Waterford v Commonwealth [1987] HCA 25 (Waterford), (1986)-(1987) 163 CLR 54, at [4], Mason and Wilson JJ where their Honours said: 4 … [Whether], in any particular case, a relationship is such to give rise to the privilege is a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment'. 103. In her written submissions, counsel for the University submitted that when considering client legal privilege under the Evidence Act, it is not necessary that the legal officers employed by a government agency be 'independent', so long as they satisfy the s 117(1) definition of 'lawyer' (i.e. a person admitted to Australian legal profession: see Evidence Act, Dictionary) and all the elements of ss 118 and 119 are satisfied. I accept that the definition of 'lawyer' in s 117(1) does not contain any express reference to the need for independence. However, this does not mean that the above mentioned remarks of Mason and Wilson JJ have no application. 104. In support of its contentions, the University cited the decision of Wigney J in Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group plc (No 2) [2013] FCA 1098 (Archer); (2013) 306 ALR 384. In that decision, at [69] to [70], his Honour referred to the differing views of Branson J in Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106 at [46] and Katzman J in Dye v Commonwealth Securities Ltd [No 5] [2010] FCA 950 at [15] in regard to a separate or distinct requirement of independence. At [72] and [73], his Honour said: 72 I doubt that much turns on the apparent difference of opinion of Katzmann J in Dye and Branson J in Rich. Whilst Branson J considered that the requirement of independence was separate to the requirement that the communication meet the dominant purpose test, it is difficult to see how the two elements are not inextricably linked. A communication between a lawyer and his or her employer is unlikely to satisfy the dominant purpose test if the lawyer was not employed as a lawyer (that is, the relationship between the lawyer and the employer was not professional) or the lawyer was not consulted in his or her professional capacity as a lawyer (for example, if they were consulted to provide commercial advice, or provide an administrative service, or were consulted as a partner or officer of the firm or company, not as a lawyer). A communication between the lawyer and his or her employer in those circumstances would not be privileged because it would not meet the dominant purpose test, not because the lawyer was not independent. On the other hand, if the relationship between the employer and lawyer was professional (in the sense that he or she was employed as a lawyer) and they were consulted in that professional context to provide legal advice, the resulting communication is likely to satisfy the dominant purpose test. … 73 Were it necessary for me to decide, I would err on the side of concluding that there is no separate requirement of independence in the case of privilege claims where the relevant lawyer is an employed or in-house lawyer. The better view is that any requirement of independence on the part of an in-house lawyer is an aspect of the relationship between the lawyer and the employer (client) and the capacity in which the lawyer is consulted. Legal professional privilege will attach to a confidential communication between an employer and its employed solicitor if it is established that the communication arises as a result of the employer consulting the employed solicitor in a professional capacity in relation to a professional matter that arises from the relationship of lawyer and client. … 105. Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given out-side this professional relationship the information is not privileged. 106. Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the 'dominant purpose' of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation. 1. In Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232, Wigney J stated at [48]: Legal professional privilege may attach to confidential communications between an employer and its employed or "in-house" solicitor or counsel provided that the employer consulted the employed solicitor in a "professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client": Waterford v The Commonwealth (1978) 163 CLR 54 at 100. The better view is that there is no separate requirement to prove that the in-house lawyer was acting independently of any pressure from his or her employer, or had any requisite measure of independence, so long as the in-house lawyer was acting in his or her professional capacity as his or her employer's lawyer and the communication otherwise meets the dominant purpose test: Archer Capital at [59]-[73]. 1. The Tribunal has reviewed pages 14 and 68 and accepts the unchallenged evidence of Mr Urry. The evidence before the Tribunal establishes that: 1. the NSWPF is the "client"; 2. Mr Urry or the OGC generally is the "lawyer"; and 3. each of pages 14 and 68 was a confidential communication between the NSWPF and Mr Urry or the OGC prepared for the dominant purpose of Mr Urry or the OGC providing legal advice to the NSWPF. 1. There is no suggestion that the privilege has been waived. It follows that the claim based on legal professional privilege has been made out and there is a conclusive presumption of an overriding public interest against disclosure of the information on those pages. 2. Further, as page 68 was prepared by the Squad, which is part of the Command, it is also subject to the conclusive presumption in Sch 1, cl 7(b). Section 14(2) and cll 1(e) and (f) - pages 15 and 16 1. As noted above, for pages 15 and 16, the respondent's position is that there is an overriding public interest against disclosure of that information. Those pages are described in the updated Schedule of Documents as follows: Pages Document 15 Recommendation Report - D 2019/366711, 24 May 2019 16 D2019/420421 Issue: Update to Standard Operating Procedures for LRAD-100X for use by the Public Order and Riot Squad 1. It is necessary for the Tribunal to weigh in the balance considerations for and against disclosure of the information on pages 15 and 16. Considerations in favour of disclosure 1. The Tribunal finds that the following are public interest considerations in favour of disclosure of the information: 1. the general public interest in favour of disclosure of government information: see s12(1) of the GIPA Act; and 2. the potential for the information to contribute to debate on issues of public importance and to inform the public about the operations of the NSWPF, including the assets available to the NSWPF to deploy against ordinary citizens as a form of crowd control and the circumstances in which such deployment may occur. 1. The Tribunal also takes into account as a personal factor of the application, the desire of the applicant to obtain knowledge of the matters set out in the previous subparagraph. Considerations against disclosure 1. As noted above, the Updated Schedule of Documents records that the respondent relies upon cll 1 (e) and (f) of the table in s 14 of the GIPA Act with respect to the information in pages 15 and 16. Those clauses, as applied to the present case, provide that there is a public interest consideration against disclosure of particular information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of: 1. (in the case of cl 1(e)) revealing a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or the NSWPF; and 2. (in the case of cl 1 (f)) prejudicing the effective exercise by the NSWPF of its functions. Could reasonably be expected 1. Each of these public interest considerations against disclosure includes the phrase '… could reasonably be expected to have one or more of the following effects …'. The principles to be applied in considering whether disclosure of information 'could reasonably be expected' to have a particular effect were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows: 68. There was no dispute between the parties that: … (2) The words 'could reasonably be expected' are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] – ... when their Honours said, as they did, that the words required a 'judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous,' to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, 'to place an unwarranted gloss upon the relatively plain words of the Act.' (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. (5) 'Prejudice' is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. (6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26]. 1. Whether disclosure of particular information 'could reasonably be expected to' have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSWPF; Brady v Commissioner of Police, NSWPF [2013] NSWADT 53 at [66]. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: [54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on 'logically probative material', and not on 'mere suspicion or speculation', as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ('Pochi') at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ('Sullivan') at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on 'logically probative material': Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]. 1. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]: Based on these authorities when considering the evidence on which it is asserted that disclosure 'could reasonably be expected' to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses. Clause 1(e) 1. Clause 1(e) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of revealing a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency. 2. The words "in such a way as to" in cl 1(e) require that there be a connection between the revelation of the deliberation, consultation, opinion, advice or recommendation and the "prejudice" to a "deliberative process" of the respondent: Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 at [57]; Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103]. 3. The expression '"deliberative process" involves "the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action... It by no means follows, therefore, that every document on a departmental file will fall into this category... documents disclosing deliberative processes must… be distinguishable from documents dealing with the purely procedural or administrative processes involved in the functions of an agency": Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58]-[59], Fire Brigade Employees' Union v Fire and Rescue (NSW) at [58] and Luxford v Department of Education and Communities (NSW) at [104]. In Miskelly v Transport for NSW [2017] NSWCATAD 207 at [72], the Tribunal noted: The 'deliberative process' of an agency has been described as its 'thinking processes ... including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its 'internal thinking': Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133. Clause 1(f) 1. Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency's functions. "Function" is defined in Sch 4 to the GIPA Act as including "a power, authority or duty". "Exercise" is there defined as including the performance of a duty. Evidence 1. The unchallenged evidence of Detective Sergeant Reily concerning pages 15 and 16 is that: 1. the Squad is responsible for the creation and updating of the Standard Operating Procedures used by the Squad; 2. the Standard Operating Procedures are reviewed and updated by a formal review process; 3. as part of that formal review process a draft of updated Standard Operating Procedures is circulated to other commands within the NSWPF to enable them to provide comments and feedback; 4. this consultation process: 1. allows commands to make any comments, or raise any concerns, regarding the operational deployment of equipment or technology and to make suggestions as to how these issues might be addressed in the Standard Operating Procedures; 2. sometimes reveals conflicting views held by different commands; 3. is managed confidentially and responses are not typically disclosed outside of the NSWPF and this is particularly the case with respect to operational matters falling within the responsibility of the Squad and the Command; 1. responses received are considered in the course of finalising the draft updated Standard Operating Procedures for approval; 2. in 2019, a consultation process of this nature was undertaken with respect to the Standard Operating Procedures for the LRAD 100X, and each of pages 15 and 16 was a response received as part of that consultation process; 3. Detective Sergeant Reily has concerns that if responses received by the Command as part of the consultation process regarding the update of Standard Operating Procedures were to be disclosed, this: 1. would reveal issues arising with respect to the operational deployment of equipment and details of police methodology; 2. could be used to circumvent or undermine NSWPF tactics and methodologies, and prejudice the ability of the NSWPF to exercise its law enforcement functions; and 3. would have an impact upon future consultation regarding draft Standard Operating Procedures and in particular she holds the view that the commands consulted as part of the process of updating the Standard Operating Procedures would be less likely to give honest and open feedback as part of that consultation process, particularly when the consultation relates to operational matters and police methodology. 1. The applicant, in his submissions, relied upon the IPC report and in particular its findings that it was not satisfied with the reasons provided by the respondent with respect to pages 15 and 16. However, the concerns expressed by the IPC have been addressed by the unchallenged evidence in this proceeding provided by Detective Sergeant Reily, as discussed above. 2. The Tribunal has considered that evidence and the contents of pages 15 and 16. Having done so, the Tribunal accepts the evidence of Detective Sergeant Reily and is satisfied that each of cll 1(e) and (f) has been established. In particular: 1. pages 15 and 16 are the product of an ongoing deliberative process concerning the Standard Operating Procedures and it can reasonably be expected that their release could have the effect of revealing the consultation conducted by the NSWPF in a way that would prejudice the ongoing deliberative process, by inhibiting the honest and open feedback that commands would provide as part of that consultation process; and 2. disclosure of pages 15 and 16 could reasonably be expected to have the effect of prejudicing the effective exercise of the NSWPF's law enforcement functions because such disclosure would reveal issues arising with respect to the operational deployment of equipment and details of police methodology and could be used to circumvent or undermine NSWPF tactics and methodologies. 1. As noted above, there are no personal factors of the application to be taken into account as matters counting against disclosure. Consideration 1. The Tribunal has considered the factors in favour of disclosure discussed at [60] and [61] above. They carry some weight. 2. As noted above, the Tribunal has also considered the public interest considerations in cll (1) (e) and (f). These factors warrant considerable weight, and on balance in the view of the Tribunal, outweigh the factors in favour of disclosure. Accordingly the respondent's decision on pages 15 and 16 should be affirmed. Conclusion and Order 1. For the reasons set out above, the decision under review should be affirmed. The order of the Tribunal is: 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2021