Industrial Relations Commission New South Wales Medium Neutral Citation: Allman v Commissioner of Police [2024] NSWIRComm 1025 Hearing dates: 17 April 2024 Date of orders: 17 April 2024 Decision date: 17 April 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: With respect to the Summons to Produce issued to the Commissioner at the request of the applicant on 10 January 2024, the Police Commissioner is excused from producing any information that is properly the subject of a claim of public interest immunity. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – documents produced pursuant to a Summons for Production – claim of public interest immunity – whether immunity attached to intelligence reports of the NSW Police Force – whether the public interest in disclosure outweighs the interests in the administration of justice – the public interest in keeping confidential the informants is outweighed by the public interest in the administration of justice in the unredacted documents being made available to the applicant – consideration of instead making s 164A orders – order made Legislation Cited: Police Act 1990 (NSW) s 181D Industrial Relations Act 1996 (NSW) 164A Cases Cited: Alister v the Queen (1984) 154 CLR 404 Attorney General (NSW) v Stuart (1994) 75 A Crim R 8 Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 Cain v Glass (No 2) (1985) 3 NSWLR 230 Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 Gardiner v The Queen (2006) 162 A Crim R 233 Marks v Beyfus (1890) 25 QBD 494 Polley v Johnson and Smith Gillard v Johnson and Smith Ward and Ward Higgs, Smith and Edwards [2013] NSWSC 543 R v Abdullah [1999], NSWCCA 188 Safework NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099 Category: Procedural rulings Parties: Commissioner of Police (applicant in the motion/respondent) Paul Allman (respondent in the motion/applicant) Representation: Representatives: A Keevers (solicitor) (applicant in the motion/respondent) D Nagle (counsel) (respondent in the motion/applicant) Solicitors: Crown Solicitor for NSW (applicant in the motion/respondent) Nikolovski Lawyers (respondent in the motion/applicant) File Number(s): 2023/35033 Publication restriction: Nil EX TERMPORE DECISION 1. Before the Commission is a Notice of Motion filed by the Police Commissioner ("respondent") seeking to be excused from producing an unredacted copy of three intelligence reports on a claim of public interest immunity. The motion is neither opposed nor consented to by the applicant, Mr Allman ("applicant"). 2. The intelligence reports are required to be produced pursuant to a Summons for Production issued by the Industrial Registrar at the request of the applicant. The applicant in these proceedings is challenging his removal from the NSW Police Force pursuant to s 181D of the Police Act 1990 (NSW). 3. The documents sought relate to one of five allegations sustained against the applicant in the context of his removal from the NSW Police Force. The fifth and relevant allegation sustained by the Police Commissioner was that Mr Allman failed to report and cooperate in the management of his ongoing association with Mr Ben Marcinkowski. The intelligence reports suggest that Mr Marcinkowski has been involved in selling cocaine and is associated with a bikie group. I understand the applicant does not deny his relationship with Mr Marcinkowski but contends that he was not obliged to report his relationship because any suspicions about him are frivolous and vexatious. 4. The Police Commissioner is seeking to redact the intelligence reports specifically on the basis of the 'informer rule'. The open evidence of Mark Walton, Assistant Commissioner of Police and the Commander of the Counter Terrorism and Special Tactics Command is that the redacted portions of the intelligence reports identify, or tend to identify, confidential informers. The Police Commissioner also read a closed affidavit of Mr Walton. Having carefully considered that Police Commissioner's evidence, I am satisfied that the redactions are necessary to protect the identity of the informants. 5. I have decided to make the orders sought by the Police Commissioner and excuse her from the requirement to produce an unredacted version of the intelligence reports. These are my reasons for that decision. 6. Public interest immunity is a doctrine of substantive law that represents a fundamental immunity. It is a doctrine which affords immunity from production of documents or eliciting of information including in cross-examination, where disclosure would be against the public interest. 7. The process to be undertaken to determine a claim of public interest immunity is settled: Alister v the Queen (1984) 154 CLR 404 at p 453; Polley v Johnson and Smith Gillard v Johnson and Smith Ward and Ward Higgs, Smith and Edwards [2013] NSWSC 543 at [35]. It is a three-step process of analysis in assessing a claim of public interest immunity: 1. Consider whether the harm would be done, and if so what harm, by the disclosure of the information as part of the proceedings; 2. Consider whether the administration of justice would be frustrated or impaired if the information was withheld from the proceedings; and 3. Conduct the balancing exercise between any harm done to the public interest by disclosing the information in the proceedings and any harm done to the public interest by withholding its admission into the proceedings. 1. The Police Commissioner referred to the 'informer rule' in claiming public interest immunity. The rational of the 'informer rule' was considered in Cain v Glass (No 2) (1985) 3 NSWLR 230 at pp 247-248: "The justification for the exalted position of the informer rule in the spectrum of public interest immunity is that, unless the anonymity of informers is protected 'the flow of intelligence about planned crime or its perpetrators' will stop: D v National Society for the Prevention of Cruelty to Children (at 232) per Lord Simon of Glaisdale. Although the need to protect the safety of informers may have played a part in creating the principle, the existence of a threat to the informer is not a condition precedent to its operation. The paramount position of the informer rule produces the result in civil proceedings that the identity of an informer in a criminal case is not admissible in any circumstances. ... ... The rule is absolute and is relaxed only where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence.'" 1. Under the common law, there is conflicting authority as to whether there is a definite rule that information given to law enforcement authorities is subject to a privilege against disclosure: See Marks v Beyfus (1890) 25 QBD 494; Cain v Glass per HcHugh J (at p 248), Kirby P (at p 234); Attorney General (NSW) v Stuart (1994) 75 A Crim R 8. It is understood that there is no absolute rule in favour of non-disclosure of an informant and the balancing exercise is still required in both civil and criminal matters where the 'informer rule' is raised: Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [41]. Despite this, the Courts have consistently found that significant weight should be given to the need to protect informers and keep law enforcement sources of information confidential. Usually, the balancing exercise in such cases will result in the need to keep such information confidential outweighing other interests: Director of Public Prosecutions v Smith (1996) 86 A Crim R 308; R v Abdullah [1999], NSWCCA 188; Gardiner v The Queen (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [98]-[99]. 2. I note for completeness that a Full Bench of the Commission considered an appeal relating to a claim for public interested immunity in Safework NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099. In that matter, the Full Bench found that there was a public interest in the non-disclosure of information that may inform or lead to the identification of the informant in the context of a work, health and safety issue to SafeWork NSW: [101]. 3. I am satisfied that there is public interest in protecting and keeping confidential the identity of those who report information to the NSW Police Force who have an expectation of anonymity for the reasons set out in Cain v Glass. That rational is not impacted by the existence of a current or pending criminal investigation or trial about those matters. 4. As I have already stated, the requirement is that the Commission engage in a process of balancing the competing public interests of harm that may be done if there is disclosure, against the frustration of the administration of justice if that information is withheld. In respect of the balancing exercise, the applicant did not today advance an argument to the effect that there will be a substantial prejudice to the applicant if he does not learn who the informers are to the intelligence reports. I do none the less take on notice that but for the public interest immunity claim, the applicant would be entitled to the information and there are good public policy reasons for parties being able to obtain information for a legitimate forensic purpose in the context of proceedings such as these. 5. Balancing these competing public interests, in this matter, and having considered the evidence of Mark Walton, I have decided that it there is a greater public interest in acceding to the Police Commissioners Notice of Motion. I have decided to make the orders sought by the Police Commissioner. In doing so, I have actively considered whether it might be more appropriate to make non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 (NSW). I have decided it is not appropriate to do so because of the sensitivity of the information, again with reference to the rational of the 'informer rule'. Orders 1. I make the following order: 1. With respect to the Summons to Produce issued to the Police Commissioner at the request of the applicant on 10 January 2024, the Police Commissioner be excused from producing any information that is properly the subject of a claim of public interest immunity. ********** COMMISSIONER WEBSTER 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: 18 April 2024