Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 Hearing dates: 27 November 2015 Date of orders: 08 March 2016 Decision date: 08 March 2016 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President P Durack SC, Senior Member Decision: 1. The appeal is upheld. 2. The decision of the Tribunal below is set aside. 3. The whole of the case is to be reconsidered by the Tribunal below constituted differently from the Tribunal at first instance. 4. Leave to appeal on grounds other than a question of law is refused. Catchwords: APPEAL - CCTV footage of incident at shopping centre – whether footage should be disclosed by providing a copy or by inspection – whether there is an overriding public interest against disclosure of the information in the way requested – procedural fairness – relevance of doctrines of freedom of political communication and restraint on publication Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63 Civil and Administrative Tribunal Act 2013 (NSW), s 80(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b) Government Information Public Access Act 2009 (NSW), s 9, 72, 105 Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Australian Broadcasting Corporation v O'Neil [2016] HCA 46; 227 CLR 57 Australian Capital Television Pty Ltd v Commonwealth (ACTV) [1992] HCA 1; (1992) 104 ALR 389; (1992) 66 ALJR 214 McCloy v New South Wales [2015] HCA 34; (2015) 89 ALJR 857 New South Wales Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 Unions NSW v New South Wales (2013) 252 CLR 530 Texts Cited: Archibold Cox, The Court and the Constitution (1987 Boston: Houghton Mifflin) Category: Principal judgment Parties: Commissioner of Police, NSW Police Force (Appellant) Fiona Field (Respondent) Representation: Counsel: J Davidson (Appellant) Solicitors: Crown Solicitor's Office (Appellant) No appearance (Respondent) File Number(s): AP 15/48050 Publication restriction: Section 64 of the Civil And Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Respondent (Ms Field) or to the public. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Field v Commissioner of Police, NSW [2015] NSWCATAD 153 Date of Decision: 21 July 2015 Before: G Walker, Senior Member File Number(s): 1510129 reasons for decision Overview 1. The Commissioner of Police appeals against a decision of the Tribunal below setting aside his decision to refuse to provide Ms Field with a copy of CCTV footage of an incident at the Centro shopping centre in Seven Hills on 1 October 2014. That incident led to a plea of guilty by Ms Field of assaulting Mr Rees, a former Premier of New South Wales. At the time of the incident, Mr Rees was a member of parliament and the shadow Minister for Police. 2. Ms Field sought access to the footage after the criminal proceedings against her arising from the incident had been finally dealt with on appeal. She sought access pursuant to the Government Information Public Access Act 2009 (NSW) (the GIPA Act), not by inspection of the footage, but by the provision of a copy of the recording to her – both forms of access are provided for under the GIPA Act. 3. The decision made on behalf of the Commissioner had been to allow only inspection of the footage. The main issue in this appeal is whether the Tribunal correctly interpreted and applied s 72(2)(d) of the GIPA Act which provides that "The agency must provide access in the way requested by the applicant unless there is an overriding public interest against disclosure of the information in the way requested by the applicant." 4. In applying the GIPA Act, the Tribunal below concluded that the public interest considerations favouring giving Ms Field access in the manner requested outweighed the public interest considerations against disclosure in that manner: GIPA Act, s 72(2)(d). 5. Various errors of law were said by the Commissioner to have been made by the Tribunal below. In respect of any such errors the Commissioner has a right of appeal. Leave to appeal was sought in relation to one ground of appeal: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2). 6. In light of the appeal, a stay of the orders made by the Tribunal below was ordered. As a consequence, the Commissioner has not yet supplied Ms Field with a copy of the footage. 7. Subsequent to the filing of the appeal, Ms Field informed the solicitors for the Commissioner that she had obtained a copy of the footage. She referred the solicitors to a link to a video on YouTube. In view of this development, the Commissioner has, correctly, raised with the Appeal Panel the question whether the appeal had become moot. 8. Ms Field did not participate in the hearing of the appeal, but by email to the Appeal Panel, shortly before the hearing of the appeal, she contended that the appeal was now redundant because she had the footage. She did, nevertheless, contend that the Commissioner should still proceed to supply her with a copy of the CCTV footage. 9. Examination of the video posted on YouTube, and, as it turns out, also on LiveLeak, reveals that it is not identical to the CCTV footage. It is shorter and considerably less clear than the CCTV footage. There are other differences as well. There are features of the shorter video posted on YouTube that suggest that it was created by filming a substantial part of the CCTV footage whilst a disk of that footage was being played. 10. For that reason, at least, we do not think that the appeal is moot. 11. The circumstances in which Ms Field came to obtain this shorter video were the subject of evidence adduced and submissions made by the Commissioner at the hearing of the appeal. If accepted, it would follow that Ms Field improperly obtained and used the video. We are not prepared to make findings about these circumstances in the absence of clear and reasonable notice to Ms Field of the Commissioner's contentions on this subject, so as to provide her with a reasonable opportunity to be heard about these matters. 12. As we expand upon below, this state of affairs concerning the circumstances in which Ms Field came to obtain the video has ramifications for the disposition of the appeal. This is because her conduct in relation to this issue is, potentially, relevant to a fresh determination of the question as to whether the public interest considerations are against disclosure of the footage to the appellant. 13. We are of the opinion that there were some errors of law in the decision by the Tribunal below and that these require that the decision be set aside. In view of our conclusions about these, we do not need to deal with all of the Commissioner's grounds of appeal and some of the other grounds of appeal can be dealt with relatively shortly. 14. We were invited by the Commissioner to make a fresh determination of Ms Field's application for administrative review of the Commissioner's decision, should we decide that the decision below should be set aside. We decline to do so. Rather, we have ordered that the whole of the case is to be reconsidered by the Tribunal below constituted differently from the Tribunal at first instance. 15. Our reasons for these conclusions are set out below. Factual background 1. During the period from November 2012 to May 2013, Mr Rees and Ms Field had an intimate relationship. Ms Field was one of his constituents and it was in that capacity that they first came into contact with each other. When the fact of the affair became public Mr Rees stepped down as opposition police spokesman. There was publicity about these events. 2. It is clear that Ms Field felt very aggrieved by the way she was treated by Mr Rees and by the accuracy and fairness of the publicity about their relationship. She felt she had been taken advantage of by Mr Rees and that the press reporting had not revealed the truth about the affair. We are in no position to comment on the reasonableness of her views about these issues and it is no part of our function to do so. 3. In the overview, we have referred to the incident on 1 October 2014. On 5 November 2014, Ms Field was fined $600 by the Local Court for assault occasioning actual bodily harm, following her plea of guilty. On 9 December 2014 that conviction was overturned on appeal by the District Court. Instead, an order was made under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 discharging Ms Field on condition she enter into a good behaviour bond for 18 months and that she obtain treatment from a registered psychologist. 4. The CCTV footage came into the possession of the police as part of their investigation of the incident. 5. The Tribunal below described the incident in the following terms: 16 On 1 October 2014, the applicant was walking within the Centro Shopping Centre, Seven Hills, in an easterly direction while Mr Rees was walking west. Shortly after both parties passed each other, the applicant approached Mr Rees and pushed him with both hands, causing him to lose his balance. The applicant then continued to walk east. A few seconds later, she turned back and approached Mr Rees and struck him with a closed fist eight or nine times. He attempted to protect himself by ducking down and walking away, but the applicant pulled him back towards her several times. 17. Mr Rees was able to break free and began walking east, away from the applicant, but she followed him and struck him in the face with her closed fist. She then struck him several more times to the face and the back of the head. He attempted to walk away, but she kept pulling him towards her. This continued for about 10 seconds until several bystanders (including a man in a security guard uniform) became involved and separated the two parties. Once the parties were separated, the applicant walked away west, while Mr Rees attended the centre management office, where police were contacted. After a short interview they asked him to attend at the police station so that a statement could be obtained. Before leaving the shopping centre, police viewed and collected the CCTV footage of the incident. As a result of the incident, police applied for an urgent apprehended violence order (AVO). 1. Not only does the CCTV footage reveal bystanders who became involved, it also depicts a number of other people and their actions, some in close proximity to the incident, who did not become involved in the incident, but were witnesses or potential witnesses to it. 2. Evidence was adduced before the Tribunal below as to a number of media reports describing the assault of Mr Rees by Ms Field. 3. On 30 December 2014, following her conviction being overturned on appeal, Ms Field made an access application under the GIPA Act, seeking the CCTV footage in the possession of the police, as well as other information relating to the matter. 4. The Commissioner's decision on Ms Field's access application was made on 27 January 2015. It was set out in a Notice of Decision sent to Ms Field. So far as the CCTV footage was concerned, access was granted for viewing only - access by supply of copy of the disks containing the footage was declined. 5. In respect of the CCTV footage, the Notice of Decision stated: I note your application requested a copy of the footage, however, I have decided that access to the footage will be provided in accordance with Section 72(1)(c) which allows you to view the footage free of charge. I am of the opinion that pursuant Section 72(2)(d) there is an overriding public interest against the release of a copy of the footage, as it would reveal the personal information of other individuals, in particular their images. This overriding public interest against disclosure is described in Section 14, Table 3(a) of the Act. I have considered the Act contains no restriction on the further dissemination of material once released. I have balanced the public interest test both in favour and against disclosure and consider that allowing you to view the footage strikes the appropriate balance. 1. Two provisions of the GIPA Act, in particular, are pertinent to this decision made on behalf of the Commissioner. First, s 9(1) which provides: 9(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 application) unless there is an overriding public interest against disclosure of the information. 1. Second, s 72 ( in Part 4) provides: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Decisions about how to provide access are reviewable under Part 5. 1. By an application dated 24 February 2015, Ms Field applied to NCAT for administrative review of the decision concerning the CCTV footage stating that: I require a copy of CCTV footage to seek legal advice and clear my name after false media reports. 1. It does not emerge from the thrust of Ms Field's evidence to the Tribunal below, as summarised in the Tribunal's reasons (see further below), that she was seeking the footage in order to challenge the fact that she had assaulted Mr Rees, or to challenge the central, objective facts concerning the assault - these had already been dealt with in the criminal proceedings. Rather, it was to use the CCTV footage to assist with possible legal action against Mr Rees as a result of what she contended was harm suffered by her from an abuse of his position, and her vulnerability, in pursuing the relationship. As well, what might be deduced from her evidence, was that her purpose was to use the footage in the media, as was suggested by her desire to clear her name, although she denied this in her evidence. Again, the desire to clear her name was not to refute the fact of the assault, but rather to show what she says was her mistreatment by Mr Rees and the psychological effect this had on her, which she said had not been portrayed in the media. 2. We note this here because some submissions made by the Commissioner to the Tribunal below, and on appeal, we think, incorrectly, characterised the motive behind Ms Field's application as being to mount an, illegitimate, collateral attack on the orders made in the criminal proceedings Evidence before the Tribunal below 1. Ms Field gave evidence before the Tribunal below as to: 1. The relationship she formed with Mr Rees, her depressed state of mind at the time of that relationship, media reports about the relationship when it became public in 2012 and her explanation for her assault of Mr Rees. 2. Criticisms of Mr Rees and how he had treated her. 3. Legal action she was considering against Mr Rees on the basis that he had abused his position and misused her confidential information. 4. Her belief that the CCTV recording would help to show her disturbed state of mind at the time of the assault and also would, she believed, show that the incident was a chance meeting and not as the media had reported it. She was seeking a chance to set the record straight. She thought the Police had embellished the story and withheld relevant information. She had been told the Police had "orders from on high". 1. Evidence was adduced on behalf of the Commissioner of its consultations with persons or organisations shown in the CCTV footage pursuant to s 54 of the GIPA Act. The Police had not been able to contact a number of the people shown in the video to see if they had any objection to disclosure. Of those contacted, two had objected to disclosure and two had no objection. 2. [Not for publication] The decision of the Tribunal below 1. Important aspects of the reasoning process of the Tribunal below were: 1. The Commissioner bore the onus of satisfying the Tribunal that a refusal of access in the form requested was the correct and preferable decision as required by s 105(2) of the GIPA Act and s 63 of the Administrative Decisions Review Act 1997 (NSW), at [55]. 2. The general public interest in favour of disclosure (s 12(1) of the GIPA Act) was a key consideration at [91]. 3. The considerations in s 12(2)(a) of the GIPA Act were substantial considerations: at [91]. Contrary to the submission of the Commissioner (at [40]) that only s 12(2)(d) was relevant (personal information of the person seeking access) Ms Field's case, plainly, raised the issue under s 12(2)(a) whether: 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. 1. As to the meaning of "could reasonably be expected" in this context the Tribunal below adopted the meaning of "distinct from something that is irrational, absurd or ridiculous" as referred to Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190 at [65]. Applying that meaning, the Tribunal below concluded that it was not irrational, absurd or ridiculous to posit that an intimate association between a Shadow Minister and a constituent such as described in Ms Field's evidence could be an appropriate subject matter for discussion in the context of public affairs, government accountability or issues of public importance: at [66]. 2. The Tribunal was of the view (at [92]) that: In addition to s 12, disclosure would be an exemplification of the constitutionally protected freedom of political information as discussed above, as well as the principle of openness as regards observing the report significant events that occur in public places. In respect of this, it added the opinion that freedom of political communication was a key feature of liberal democratic society and, thus, this consideration "merits substantial weight": at [93]. In referring to this freedom the Tribunal said (at [70]): Its effect is that legislation should be interpreted so as not to infringe the constitutional liberty which is a distinguishing feature of liberal democracy. That consideration may be an aspect of s 12(2)(a) or, as the list of public interest considerations favouring disclosure in s 12(2) is not exhausted, it may constitute a separate consideration in itself. 1. The consideration that the information was personal information of the person to whom it was to be disclosed (s 12(2)(d)) was important in this case because the CCTV footage depicted an incident that has proved very important in Ms Field's life and has had far reaching repercussions for her: at [94]. 2. The personal factors for or against disclosure to which regard was to be had (s 55 of the GIPA Act) appeared to cancel each other out: at [108]. It could not be said that Ms Field's claimed motive to use the footage to assist civil proceedings was otiose, on the basis that she could not mount a collateral attack on the earlier criminal decision or because her state of mind would be irrelevant in a civil claim: at [103]. This was because it was no part of the Tribunal's function to determine whether Ms Field had a possible cause of action or estimate its chances of success: at [104]. If, contrary to her evidence, her motive was to provide the footage to the media or post it on social media then this was a consideration favouring disclosure because of the common law's long-standing aversion to prior restraint on publication at [106]–[107]. 3. Turning to the public interest considerations against disclosure, the Tribunal concluded that the consideration against disclosure of personal information (cl 3(a) of the Table in s 14 of the GIPA Act) did not apply: at [81]. Whilst the Tribunal below accepted or assumed that the images and actions of Mr Rees and bystanders did constitute "personal information", it concluded that providing the footage to Ms Field would not "reveal" such personal information because the images and actions had occurred in a public place and, therefore, are taken to have been publicly disclosed: at [78]-[81]. In so finding, the Tribunal below purported to apply the meaning of "reveal information" as defined in cl 1 of Schedule 4 of the GIPA Act, which provides: To disclose information that has not already been publically disclosed (otherwise than by unlawful disclosure). 1. In support of this conclusion, the Tribunal below reasoned that the officially published Police media policy constituted official recognition of the principle that an event in a public place is an event in the public domain: at [79]. This was because it referred to a right of members of the public to photograph or video record things and events observable from a public space, including Police operations. 2. Details of the incident had been disclosed in the police factsheet tendered in the Local Court prosecution of Ms Field, which the Tribunal found to be an accurate description of the incident as captured in the CCTV footage, but the CCTV footage had not been tendered: at [77]-[78]. 3. Disclosure would contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act), being a public interest consideration against disclosure, as specified in cl 3(b) of the Table in s 14: at [86]. In particular, there would be a contravention of s 18(1) of the PPIP Act. However, this consideration carried somewhat reduced weight given that the incident portrayed in the CCTV footage occurred in a public place, was observed by members of the public at the time, and was the subject of extensive media publicity: at [95]. 4. Disclosure would not contravene a Health Privacy Principle under the Health Records and Information Privacy Act 2002 (NSW) (the HRIP Act), being another public interest consideration against disclosure, as specified in cl 3(b) of the Table in s 14 of the GIPA Act. On the facts, the footage did not contain "health information" as defined in s 6(a) (i) of the HRIP Act. This was because the footage did not show the scratch to Mr Rees' ear, or whether he had sustained any injuries at all: at [88]. 5. The public interest consideration against disclosure in cl 3(f) of the Table was a consideration against disclosure: at [90]. That consideration is in terms: 3 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: … (f) expose a person to a risk of harm or of serious harassment or serious intimidation. 1. However, whilst harassment and intimidation potentially weighed heavily in the scales, the evidence gave little cause for believing that there was a serious risk of harassment or intimidation: at [110]. This was because Ms Field no longer texts Mr Rees and says she has no desire to have any contact with him. Also, she had removed the photograph of Mr Rees' injury from social media and she had closed her social media account. It was also, apparently, because of the somewhat reduced weight to be given to Mr Rees' objection, in view of its unparticularised nature: at [99]. 1. It can be seen from the reasons of the Tribunal below that the following considerations were material to the decision: 1. Freedom of political communication and to publish without restraint. 2. That it was not irrational to regard use of the CCTV footage as contributing to informed discussion of public affairs and to issues of public importance. 3. Disclosure of information revealing actions in the public domain did not involve revealing personal information. 4. There was little basis for thinking there was a serious risk of harassment. Grounds of Appeal 1. The Grounds of Appeal were in the following terms: The Tribunal erred in: 1. Making a finding not open on the evidence, namely, that giving the respondent a copy of the CCTV 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 (at [69]); 2. In relation to the implied freedom of political communication (at [70] and [92]-[93]): (a) taking into account an irrelevant consideration; (b) misconstruing the implied freedom of political communication; and (c) failing to afford the appellant procedural fairness by omitting to raise the consideration during the proceedings; 3. In relation to Table 3(a): (a) asking the wrong question of whether information was recorded in a "public place" (at [78]-[81]); (b) failing to afford the appellant procedural fairness by taking into account the Media Policy of the New South Wales Police Force without raising that Policy during the proceedings (at [79]); (c) making a finding not open on the evidence, namely, that information about what each individual bystander visible in the CCTV footage was doing during the assault had previously been disclosed in open court (at [77]); 4. In relation to Table 3(b), misconstruing the definition of "health information" in s 6(a) of the Health Records and Information Privacy Act 2002 by asking the wrong question of whether the information was about a person's "injuries" rather than whether the information was about his "health" (at [88]); 5. Failing to afford the appellant procedural fairness by refusing to address a substantial claim, namely, that the respondent did not have "a possible cause of action" (at [104]); 6. In relation to "the common law's long-standing aversion to prior restraint on publication" (at [106]): (a) taking into account an irrelevant consideration; (b) misconstruing the relationship between s 55 and the balancing test in s 13; and (c) failing to afford the appellant procedural fairness by omitting to raise the consideration during the proceedings; 7. Making a finding not open on the evidence, namely, that both the parties who did not object to disclosure of the CCTV footage were bystanders to the assault (at [109]); 8. Failing to afford the appellant procedural fairness by failing to address a substantial claim, namely, the appellant's claim during the hearing that s 72(2)(a) of the Government Information (Public Access) Act 2009 applied. 9. Making a decision which was unreasonable in the Wednesbury sense, including but not limited to making contradictory factual findings as to whether disclosure of the CCTV footage could reasonably be expected to expose a person to a risk of farm or of serious harassment or serious intimidation (at [90], [99] and [110]); and 10. Finding that, on balance, the public interest considerations in favour of disclosure in the manner sought by the respondent outweighed the public interest considerations against disclosure. Publication of footage of the incident after the filing the appeal 1. As already mentioned, the appellant drew to the Appeal Panel's attention an issue as to whether the appeal had become moot. This was because it had become apparent that Ms Field had obtained a video recording sourced from the CCTV footage. Ms Field, by her email of 27 November 2015, in effect, contends that the appeal has become moot. 2. In addition, because the video recording Ms Field obtained had been published on YouTube and LiveLeak, at the hearing of the appeal, the appellant contended that this was unlawful publication. This was relevant, at least, to the question whether disclosure of the CCTV footage would reveal personal information. If the information had already been publicly disclosed, then it would not, unless such publication was unlawful (cl 3(a) of the Table in s 14 of the GIPA Act, and the exception concerning "unlawful disclosure" in the definition of "reveal information" in cl 1 of Sch 4). 3. From evidence adduced by the appellant at the hearing of the appeal about this issue, we find that: 1. By 2 November 2015, Ms Field had obtained a video recording sourced from the CCTV footage but "thanks to Surry Hills Police taking me to court, they made no objection to me having the footage" – a statement made by Ms Field in an email from her to Mr Minson, a solicitor employed in the Office of the Crown Solicitor, dated 2 November 2015 at 2:10pm. 2. The video recording that Ms Field obtained was posted by her on YouTube and LiveLeak on 2 November 2015. 3. A comparison of the CCTV footage with the video recording posted on the sites by Ms Field (which we have undertaken) reveals that the CCTV footage and the video recordings posted by Ms Field are not identical. The CCTV footage consists of two, separate video files which together have a duration of just over four minutes. The video recordings posted by Ms Field have a duration of just over two minutes, consist of one video file and depict a significant part, but not all, of the events on the CCTV footage. The video recordings posted by Ms Field are of lower quality than the CCTV footage – the scenes and the images of the people in them are considerably less clear and are somewhat wobbly. It would appear, as the appellant submits, that the video recording posted by Ms Field consists of a video taken of part of the CCTV footage. 1. At the hearing of the appeal, the appellant also adduced evidence in the form of an affidavit dated 26 November 2015 (the day before the hearing of the appeal) from Constable Schmidt. He deposed that on 28 October 2015, Ms Field was granted access to a disk of the CCTV footage that had been produced to the Local Court by the Centro Shopping Centre in response to a subpoena. The subpoena had been issued on behalf of Ms Field in Local Court proceedings commenced in 2015 by an Officer of the NSW Police Force for an Apprehended Personal Violence Order, on behalf of a named person in need of protection against Ms Field (this person was a journalist, not Mr Rees). The first hearing date in those proceedings had been on 22 July 2015. 2. According to Constable Schmidt's evidence, the Court had granted Ms Field access to the disk of the footage "for viewing only in order to determine relevance." Constable Schmidt's evidence was that Ms Field left the Court room with a member of the Registry staff in order to view the disk. His evidence was that she returned approximately 10 minutes later and stated to the Magistrate that she had viewed the footage and it was not relevant. As a consequence, no further steps were taken. 3. The appellant contends that we should infer that Ms Field took a video recording of the CCTV footage, presumably on her phone, during this occasion when she viewed the footage. The appellant says there are features of the video which support this contention, including that it is wobbly, that there are occasional black lines at the edges of the film and it is less clear. These features do appear from viewing the video. 4. However, in circumstances where Ms Field has not been given an opportunity to respond to this contention and its implications of misconduct, following clear and reasonable notice, we are not prepared to make such a finding. Furthermore, there are gaps in the Commissioner's evidence which are material in the context of a contention of such a serious nature. First, there is no evidence from the member of the Registry staff, or anyone else, as to what occurred when Ms Field was taken to view the video and whether Ms Field had a mobile phone with her that could have filmed the footage. Second, there is no expert opinion as to the method by which the video was obtained. The appeal is not moot 1. In New South Wales Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15, the ADT Appeal Panel said (at [13]): … it would not be appropriate in the circumstances of this case to answer a question which is 'merely moot, theoretical, abstract, hypothetical and advisory': Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). In Miller v Commissioner of Police NSW [2004] NSWCA 356 the Court of Appeal said that it 'would not deliver what would, in effect, be an advisory opinion on an issue which had become moot'. The Court went on to say that, 'Courts do not entertain appeals on questions which would "produce no foreseeable consequences for the parties"'. 1. In our opinion, the appeal is not moot because the decision on the appeal will have the consequence that Ms Field does or does not receive CCTV footage that is 1. different, both in content and quality, to the video she has obtained, 2. free from any restraint on publication. 1. On the other hand, there is, at least, a real possibility that the video she has obtained is subject to an implied undertaking that it not be used other than for the purpose of the Local Court proceedings for an apprehended personal violence order. If the Commissioner's contentions about the circumstances in which Ms Field came to obtain the video are correct, then it would follow that use of the video is restrained in this way. As we have said, we are not in a position to find that he is correct about this, but we accept that there is a real possibility that this is what occurred. 2. We do not agree with the additional submission of the Commissioner that the appeal is not moot because Ms Field has not withdrawn her access application and so the appeal will still determine whether or not the Commissioner has to provide a copy of the CCTV footage to Ms Field. Nor do we agree with the submission that the appeal is not moot because there are points of law in issue that will affect how the Commissioner deals with future applications for access. Merits of the appeal – Ground 2, the freedom of political communication point 1. We now turn to the merits of the appeal. We deal, first, with Grounds 2, 3 and 4 because this was the order in which Counsel for the Commissioner addressed us in oral submissions. 2. As we have already said, the implied constitutional freedom of political communication was a material aspect of the decision of the Tribunal below. However, it was not a point that was raised with the parties at the hearing below. This was an error of law by the Tribunal because it was an issue of significance and neither the Commissioner nor Ms Field had an opportunity to address it. There was, in this respect, a failure to accord procedural fairness. 3. Plainly, parallels exist between the freedom of political communication, the public interest consideration in s 12(2)(a) of the GIPA Act and the Act's objects in s 3(1). However, there were some forceful arguments to be made against the approach that the Tribunal took in relation to this freedom. Just what the freedom may or may not require in relation to access to government information and what restrictions on the freedom are justified in this field is likely to be controversial. In an appropriate context, where there was a challenge to the validity of legislation (see further below), any such issues would raise matters of public importance upon which a number of interests may wish to be heard. In contrast, this is not the occasion to embark upon a full consideration of the intersection between the freedom and the GIPA Act. 4. Nevertheless, we do think it necessary to take issue with some aspects of the reasoning of the Tribunal below on this subject. 5. The appellant states that it does not submit that the freedom of political communication can never be a permissible public interest consideration in favour of disclosure of government information under the GIPA Act. That might be a controversial concession. The Commissioner submits, however, that the freedom as interpreted by the Tribunal below was an irrelevant consideration. This is because the Tribunal below treated the freedom as akin to an individual right, when it is not. The Tribunal also, so the Commissioner submits, incorrectly, treated the freedom as relevant to the construction of the GIPA Act. 6. The need for the freedom of political communication has been explained by reference to the following extract from the text by Archibold Cox, The Court and the Constitution (1987 Boston: Houghton Mifflin): Only by uninhibited publication can the flow of information be secured and the people informed … Only by freedom of speech … and of association can people build and assert political power. See per Mason CJ in Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; 177 CLR 106 at 139 and the joint judgment in Unions NSW v New South Wales (2013) 252 CLR 530 at [36]. 1. We note in passing that such rationale does not make it obvious that access to government information is part of the freedom of political communication. 2. Even if it was part of such freedom, it is clear that the freedom is not absolute and that it is concerned with the validity of legislative power – it is not a right. 3. What follows from these last two features of the freedom is that the legislation in issue might well be regarded as involving a justified burden on the freedom, in which event it is difficult to see how the freedom of political communication has any further role to play in respect of the application of the legislation. 4. In the context of the GIPA Act, if the freedom is applicable, but the burden is justified - the NCAT proceedings involve no contention to the contrary- it is difficult to see how there is any role for the freedom to play in the application of the provisions of the GIPA Act to an access application. It should not, for example, be applied to diminish the force of the burden on the freedom in the weighing of the public considerations for or against disclosure. 5. In support of these two features of the freedom of political communication, it is sufficient to refer to the following authority: [29] In any event, what the plaintiffs identify is something in the nature of a personal right. The plaintiffs' argument appears to mistakenly equate the freedom under our Constitution with an individual right such as is conferred by the First Amendment to the United States Constitution, which operates in the field of political donations and is in the nature of both a right of political expression and a right of political association. [30] It has repeatedly been explained, most recently in Unions NSW, that the freedom is not a personal right. In ACTV, Brennan J said that "the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation". The freedom is best understood as a constitutional restriction on legislative power and the question is more generally as to the effect that the impugned legislation has upon the freedom: McCloy v New South Wales [2015] HCA 34; (2015) 89 ALJR 857 at [29] and [30]. [2] As explained in the reasons that follow, the question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this court and particularly Lange v Australian Broadcasting Corporation and Coleman v Power: A The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may "exercise a free and informed choice as electors". It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions: McCloy v New South Wales [2015] HCA 34; (2015) 89 ALJR 857 at [2]. 1. In view of these features of the freedom of political communication, it appears that the Tribunal below erred in failing to appreciate these limitations concerning the freedom. As a consequence, it appears to have treated the freedom as akin to an unqualified right, which influenced both the interpretation and application of the GIPA Act, and which had a significant bearing on the outcome of the review: at [70], [92] and [93]. These were errors of law. 2. Accordingly, we uphold Grounds 2 (b) and (c) of the appeal. Ground 3, would personal information be revealed- the public place point (cl 3(a)) 1. The Tribunal below took no account of the fact that the CCTV footage contained the personal information of a number of people, including Mr Rees. It did not do so because of its opinion that the events depicted occurred in a public place and, hence, the information must be taken to have been publicly disclosed within the meaning of the definition of "reveal information". 2. The public interest consideration against disclosure concerned with revealing personal information was at the forefront of the Commissioner's opposition to provision of the footage to Ms Field. Once supplied to Ms Field, there could be no restraint upon her publication of it. Clearly, this gave grounds for concern. Regardless of the fact that the events occurred in public, there were readily understandable sensitivities for a number of individuals about the publication of clear and, relatively, precise scenes of what occurred. Most prominent amongst these individuals was Mr Rees, but others would have justifiable concerns as well. Four unspecified persons or organisations shown in the footage were consulted about disclosure pursuant to s 54 of the GIPA Act, but the police were unable to consult with others. Two of those persons or organisations objected to disclosure and two did not object: affidavit of Senior Sergeant Fam dated 11 May 2015 at [12]-[15]. 3. We do not think it follows in this case that because the event occurred in a public place the information depicting or describing that event has been publicly disclosed. Accordingly, we disagree with the Tribunal below on this point and think that the Tribunal misconstrued the definition of "reveal information" (see definition in [34(8)] above). It also directed itself to the wrong question, namely whether the information must be taken to have been disclosed. This was an error of law. 4. In applying the GIPA Act, the focus is on access to information which is in the possession of the government and which is, usually, not otherwise available or readily available to the public. The issue here is not resolved by the consideration of the common law of privacy and its approach to intrusions that one is taken to have accepted by appearing in public. Such consideration is apt to distract from the construction of the GIPA Act in accordance with the ordinary principles of statutory construction. It is, in our opinion, an irrelevant consideration and the Tribunal below erred in having regard to it: at [78]–[81]. 5. The issue is not whether footage could have been lawfully taken. It is whether access to footage actually taken and in the possession of government should be permitted, according to the regime laid down in the GIPA Act. 6. The approach adopted by the Tribunal below could lead to some striking results. Film or photographs of a most personal or embarrassing nature, in the hands of government, would be subject to disclosure simply because the actions occurred in the public domain. One example would be scenes of terrible injuries resulting from a road accident. 7. Looking at the statutory provisions, it can be seen that "personal information" has a wide definition: GIPA Act, Sch 4, cl 4. It is not defined by reference to matters that have occurred in private. It is concerned with information "about an individual". 8. When it comes to the question whether such personal information has been revealed, the statutory provisions are concerned with revealing information, not with a revealing the event to which the information relates (cl 3(a) in the Table in s 14 and the definition of "reveal information" in cl 1 of Schedule 4 of the GIPA Act). The incident itself is quite distinct from the information that is obtained about it. 9. The fact that some information about the event has been publicly disclosed does not mean that other information has been. Correctly, the Tribunal below, as we interpret its reasons, did not conclude that the information in the footage had been publicly disclosed because of the tender in open court of the police fact sheet describing the incident (at [76]-[77] and see the reason for its conclusion on this point at [81]) or because of the press reports about the incident. 10. In our opinion, the Tribunal below should have regarded the personal information consideration as a relevant and important consideration against disclosure. 11. Accordingly, we uphold Ground 3 (a) of the appeal. In the circumstances, it is unnecessary for us to deal with Ground 3(b). 12. We reject Ground 3 (c). The finding there, purportedly, challenged was not made by the Tribunal below. 13. This consideration concerning disclosure of personal information has now been impacted by the disclosure of the video recording obtained by Ms Field. The impact of that is affected by the question whether that disclosure was unlawful. If it was unlawful, then the publication of that video is not regarded as public disclosure for the purpose of deciding whether provision of a copy of the CCTV footage would reveal personal information. 14. As we have already explained, we are not in a position to make a finding on appeal that Ms Field's publication of the video was unlawful. That is an issue that needs to be determined at first instance after Ms Field has had a reasonable opportunity to respond to it. This is one reason why we do not agree with the Commissioner's submission that we should make a fresh determination about the correctness of the Commissioner's decision, should we find, as we do, that the decision of the Tribunal is to be set aside because of errors of law. Ground 4, would there be disclosure of health information (cl 3(b)) 1. We do not agree that the Tribunal misconstrued the definition of "health information" in the HRIP Act or asked himself the wrong question. In our opinion, it was open to the Tribunal below to conclude that the CCTV footage did not disclose health information because it did not disclose that Mr Rees sustained any injuries at all: at [88]. This was a conclusion based on the particular facts of the assault in this case as revealed in the footage. 2. Accordingly, we reject Ground 4 of the appeal. Ground 5, no possible cause of action for which CCTV could be used 1. The Commissioner's answer to Ms Field's evidence that she wanted the video for the purpose of possible legal action was to argue that she had no possible cause of action. On appeal, the Commissioner submitted that the Tribunal below failed to deal with this argument. In particular, the appellant submits that the Tribunal below should have engaged with, and, presumably, accepted the principle that civil proceedings cannot be brought to mount a collateral attack on the outcome of criminal proceedings. 2. We disagree with Commissioner's submissions on this point. In our opinion, the argument about mounting a collateral attack was not really to the point. It assumed, incorrectly, that foreshadowed civil proceedings would challenge the correctness of what occurred in the criminal proceedings. That this would be the case does not emerge from Ms Field's evidence about such proceedings, as summarised by the Tribunal below (see at [31(3)] above). 3. In these circumstances there was no clear reason to reject the existence or force of such motive. In our opinion, the Tribunal below sufficiently dealt with the matter by concluding that this motive could not be regarded as otiose (at [104]), pointing out, in effect, the impracticability of the Tribunal seeking to determine the validity or prospects of a civil claim. 4. Accordingly, we reject Ground 5 of the appeal. Ground 6, prior restraint on publication 1. According to the Tribunal below, a consideration in favour of disclosure was that withholding a copy of the footage from Ms Field "would partake of the nature of a prior restraint on disclosure" to which the law had an antipathy: at [107]. 2. As with the Tribunal's approach to freedom of political communication, this appears to be akin to recognising a right of access for the purpose of publication. However, this is broader than the freedom of political communication because the publication appears to be of such "sentiments" as one chooses to lay before the public: at [106]. 3. This was a substantial matter in favour of Ms Field's application. However, it was not raised in the hearing below and the Commissioner did not have a reasonable opportunity to respond to it. In our opinion, as with the freedom of political communication point, there was, in this regard, a denial of procedural fairness. 4. Accordingly, we uphold Ground 6 (c) of the appeal. 5. We also uphold Ground 6 (a) of the appeal. We do not agree with the Tribunal's conclusion that refusal of access would "partake of the nature of a prior restraint" on publication, to which the law has an aversion, or that such a consideration is applicable to the present field (see in the Tribunal below at [106] - [107]). This is because: 1. No restraint on publication is imposed under an application of the GIPA. 2. The question whether equity will intervene to restrain defamatory statements is far removed from legislative regulation of access to government information. The former has its distinct historical foundations (see per Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neil [2016] HCA 46; 227 CLR 57 at [82]) and distinct competing interests leading to the policy of the law that has been adopted (per Gummow and Hayne JJ in O'Neil at [87]). The public interest in freedom of speech going beyond public benefit underlies that policy (per Gleeson CJ and Crennan J in O'Neil at [31]), whereas the interest of the GIPA Act in publication of information is very much concerned with the public benefit: see ss 12(2) (a),(b),(c) and (e) and the object of the legislation in s3. The aversion to restraint on publication is not inflexibly applied and equity has developed its own principles to guide the discretion in this area (per Gleeson CJ and Crennan J at [18]. 3. The approach of the Tribunal below appears to tip the scales strongly in favour of disclosure of the information in any case where the, easily, pronounced motive was to publish. In our opinion, nothing in the GIPA Act authorises such an approach. It is unnecessary for us to rule upon Ground 6(b) of the appeal Ground 7, no objection from two bystanders 1. We uphold Ground 7 of the appeal. 2. [Not for publication] Ground 8, failing to address unreasonable interference with agency's operations 1. We reject Ground 8 of the appeal. 2. In the appellant's oral submissions to the Tribunal below it said (at page 30, line 35): …if the tribunal considers that there won't be an overriding public interest against disclosure if people's faces are pixelated then our argument would be that the process of pixilation would interfere unreasonably with the operations of the New South Wales Police Force under 2(a) The reference to 2(a) was clearly a reference to s 72(2)(a) of the GIPA Act. 1. Evidence had been adduced by the appellant in the proceedings below from Acting Inspector James as to the need to spend some three hours pixelating the footage. 2. We do not agree with the submission that there was a denial of procedural fairness to the appellant because the Tribunal below did not deal with this submission. This is because the point did not arise on the reasoning of the Tribunal. The Tribunal did not reason that with pixilation there would be no overriding public interest against disclosure. Rather, it dismissed or discounted the privacy considerations for reasons unrelated to pixilation. Ground 9, Wednesbury unreasonableness, contradictory findings about risk of harassment. 1. We reject Ground 9 of the appeal. 2. The Commissioner submits that the findings of the Tribunal below on the subject of risk of harassment of Mr Rees at [90], [96]-[99] and [110] were contradictory and rose to the level of Wednesbury unreasonableness. 3. We disagree. In essence, the Tribunal reasoned that risk of harassment from the media and Ms Field was a consideration, but on the facts there was little reason to conclude that there was a serious risk of harassment. Various facts were relied upon for that conclusion, including that there had been no reports of any breaches of the AVO, Ms Field no longer texts Mr Rees, she had removed the photograph of his assault injuries from social media and closed her social media account [110]. Earlier the Tribunal had referred to Ms Field's evidence that she had no intention of taking her story to the media because she wanted nothing to do with them, but the Tribunal noted that she could change her mind at [90] and [105]. In addition, Mr Rees objection lacked particularity at [99]. 4. These are not contradictory findings. They express factual conclusions that were available on the evidence. 5. The publication by Ms Field of the video recording after the decision of the Tribunal impacts on a current assessment of the risk of harassment of Mr Rees. For one thing, it is inconsistent with her evidence to the Tribunal below concerning her use of social media. Further, we do not know what effect this step has had on the media's interactions with Mr Rees. 6. These are also matters that indicate that we should not embark upon a fresh determination of a review of the Commissioner's decision. Ground 1, not open to find disclosure could contribute to debate of public importance 1. We do not think the Tribunal below should have dismissed the s 12(2)(a) consideration as unavailable for consideration. On Ms Field's evidence concerning her relationship with Mr Rees, matters were put forward by her that raised a public affair issue and an issue of public importance, as to his alleged misconduct in his position as a member of parliament. 2. In our opinion, it was open to the Tribunal to conclude, as it did, that it was not irrational, absurd or ridiculous to conclude that disclosure could promote and contribute to the discussion or informed debate referred to in s 12(2)(a). 3. That is not to say that Ms Field's case about this consideration was a strong one. In our opinion, the arguments advanced by the Commissioner under this ground of appeal suggest otherwise. The CCTV contains no audio and depicts no assertive or other misconduct by Mr Rees. Given that Ms Field's assault of Mr Rees is already in the public domain, the CCTV footage appears to be of limited assistance in adding to her case that Mr Rees' alleged mistreatment of her caused her to have a disturbed state of mind. Ground 10, wrong conclusion from the balancing exercise 1. The appellant seeks leave to appeal under this ground. This is because this ground of appeal involves no error of law. 2. In view of our conclusions to date as to errors of law and as to the significance of those errors, it is unnecessary for us to deal with this ground of appeal. Given that we have identified errors of law in the balancing exercise, it would not be sensible for us to examine the question whether the Tribunal arrived at the correct conclusion on the facts. 3. Clearly, a fresh determination of the balancing exercise is required, according to law. For the reasons we have to some extent already touched upon, but set out below, we consider that this should be carried out by the Tribunal below. 4. For these reasons, leave to appeal on this ground is refused. Outcome of the appeal 1. As we have already explained, in our opinion, there were errors of law in the decision of the Tribunal below and these warrant the setting aside of the Tribunal's decision. 2. We do not agree with the Commissioner's submission that we should determine afresh the question whether the Commissioner's decision was the correct and preferable one, thereby requiring us to carry out the balancing exercise as to whether the public considerations against disclosure outweigh those in favour of disclosure. 3. This is because: 1. Ms Field should have the opportunity to be heard on the issue of alleged unlawfulness in the publication of the video recording on YouTube and LiveLeak, a matter that bears upon the application of the personal information consideration against disclosure. 2. Ms Field should have the opportunity to be heard about the implications of her publication of the video upon the credibility of her case about her motives for seeking access and upon the risk of harassment factor. 3. Consideration needs to be given to the weight to be given to the personal information consideration against disclosure, if it be the case that Ms Field's publication of the video was not unlawful. 4. Overall, the Tribunal below will be better placed to examine and hear argument on the whole of the evidence and all of the public interest considerations. Orders on appeal 1. For the above reasons, we make the following orders: 1. The appeal is upheld. 2. The decision of the Tribunal below is set aside. 3. The whole of the case be reconsidered by the Tribunal below constituted differently from the Tribunal at first instance. 4. Leave to appeal on grounds other than a question of law is refused. ********** 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: 08 March 2016