SA v New South Wales Crime Commission

1. [1]

   By summons filed 17 July 2015 the plaintiff has sought judicial review of a decision of the Crime Commission made 22 June 2015 to issue to the plaintiff an examination summons under s 24 Crime Commission Act 2012 (NSW). The examination summons required the plaintiff to appear before the Commission on 9 July 2015 at a hearing, to give evidence. The proposed hearing has been adjourned by agreement until the plaintiff’s application for judicial review has been determined by the Court.

2. [2]

   The plaintiff is under 18 years of age. An order was made by consent on 14 September 2015 that he be referred to in these proceedings only by the initials SA. One purpose of this order is to protect his identity, given that he is a young person.

3. [3]

   Ancillary to his principal claim for relief the plaintiff on 16 October 2015 filed a notice of motion seeking an order in the following terms:

4. [4]

   At the conclusion of the hearing of that motion on 1 December 2015 I informed the parties that I would dismiss it with costs. These are my reasons for doing so.

5. [5]

   Rule 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) is in the following terms:

6. [6]

   The issue of the examination summons to the plaintiff followed a submission made to the Commissioner by one of the Commission senior officers. This document was received in evidence on the hearing of the notice of motion as Confidential Exhibit 2. The Commission claims public interest immunity in respect of it. The submission was endorsed with the words “summons issued” in the handwriting of the Commissioner, initialled and dated by him.

7. [7]

   I find that the submission constitutes a written statement of the reasons which were adopted by the Commissioner for his decision to issue the examination summons. It sets out certain facts relative to an ongoing investigation by the Commission and identifies evidence and other material upon the basis of which those facts are stated. If ordered to be provided to the plaintiff pursuant to r 59.9 this document would satisfy all the requirements of “a copy of the decision” and of “a statement of reasons for the decision” as referred to in sub rules (2) and (3) of r 59.9. In substance, by his notice of motion the plaintiff is seeking an order that he be provided with this document. Hereafter I will refer to the submission, which became Confidential Exhibit 2, as “the reasons”.

8. [8]

   The plaintiff’s notice of motion must be dismissed upon three independent grounds, each of which I will expand hereafter:

Section 80(3) Crime Commission Act

1. [9]

   Subsection (1) of s 80 lists the persons to whom the section applies. It includes executive officers and past and present members of staff of the Commission and persons who may have been given information by the Commission on a confidential basis. Subsection (3) of s 80 is relevant to the present case (with emphasis added):

2. [10]

   For the purposes of section 80, the word “produce” is defined in subs (6):

3. [11]

   There are minor differences between the wording of s 80 Crime Commission Act and s 111 Independent Commission Against Corruption Act 1988 (NSW) (“ICAC Act”). The differences are so slight and their impact so insignificant that for all practical purposes the two sections are identical. Section 111 Independent Commission Against Corruption Act has been considered judicially with respect to the operation of court procedures for compulsory production of documents.

4. [12]

   In “A” v Independent Commission Against Corruption [2014] NSWSC 1167 (“A v ICAC”) the Independent Commission Against Corruption (hereafter referred to as “ICAC”) had served upon the plaintiff a summons requiring it to produce documents. In this Court the plaintiff alleged the issue of the production summons was invalid and sought to have it quashed. In aid of this application, the plaintiff served upon ICAC a notice seeking production of any documents which had been provided to, considered by or relied upon by ICAC in connection with the decision to issue the summons. It is not clear whether the plaintiff’s notice to produce called for production as between the parties (UCPR r 21.10) or production to the Court (r 34.1).

5. [13]

   ICAC invoked subs(3) of s 111 ICAC Act (almost identical to s 80(3) Crime Commission Act) and said that the plaintiff’s notice to produce should be set aside because it purported to require ICAC to produce documents which, according to s 111(3), ICAC’s officers could not be required to produce. The Court held that although the plaintiff was seeking production as against ICAC, a distinct legal entity, whereas s 111(3) in terms confers the exemption from having to produce documents upon individual officers, s 111(3) nevertheless applied: [11] – [15]. The Court further held that s 111(3) was applicable to documents which had been generated by ICAC itself and was not limited to documents which may have come into its hands from external sources: [16] – [22]. In both of these respects the first instance decision was upheld in the Court of Appeal in A v Independent Commission Against Corruption [2014] NSWCA 414 per Basten JA at [42] and [46] and per Ward JA at [163] – [178] (Bathurst CJ agreeing at [7]).

6. [14]

   Section 111 ICAC Act was again considered in Cunneen and Ors v Independent Commission Against Corruption [2014] NSWSC 1571. There the plaintiff sought an order under r 59.9 that it be provided with a statement of reasons for the decision of ICAC to conduct an investigation into certain allegations against her.

7. [15]

   At first instance Hoeben CJ at CL declined to make an order for the provision of reasons under r 59.9, at [32] – [40]:

8. [16]

   In [37] – [40] above his Honour took into account a number of circumstances bearing upon the exercise of his discretion under r 59.9. The first of these, at [37], was that an order for ICAC to provide its reasons would be ineffective because of s 111(3) ICAC Act, by force of which ICAC would not be obliged to comply with such an order. Counsel for ICAC in reliance on s 111(3) said that ICAC would not comply.

9. [17]

   At the commencement of [37] his Honour referred to the discretionary nature of orders under r 59.9 as “another consideration”, thereby indicating that the preceding paragraphs of the reasons, [32] – [36], were concerned with a more direct and definitive basis upon which s 111(3) precludes the making of a r 59.9 order. His Honour’s holding at [32] – [36] is that s 111(3) applies to r 59.9 and prevents the Court from making an order under the rule against ICAC. Section 111(3) renders ineffective any such order which the Court may purport to make.

10. [18]

    On appeal in Cunneen v ICAC [2014] NSWCA 421 this holding was considered by Ward JA at [154] – [164]. At [157] her Honour found that there was “force to the submission by the applicants that a statement of reasons produced in compliance with the Court order is not (or at least not necessarily) a document falling within s 111(3)”. That proposition would have no application in the present case because, as referred to at [7], there is an extant statement of reasons by the Crime Commission. There would be no warrant for ordering the preparation of a fresh document: to be a true statement of reasons, any fresh document prepared under an order of the Court would have to be a repetition of the reasons which were documented contemporaneously. Ward JA continued: “Nevertheless to the extent that the statement of reasons sought in the present case was one that required the disclosure of documents or material otherwise caught by s 111(3) the difficulty considered in A v ICAC remains”.

11. [19]

    I understand the reference to “the difficulty considered in A v ICAC” to mean the constraint upon the Court not to order the production of documents or to enforce a party’s notice to produce where the effect of doing so would be to require an officer of ICAC to produce a document for which the section creates an immunity against production.

12. [20]

    Basten JA did not find it necessary to come to any firm conclusion about the operation of s 111(3): [118] – [122]. Bathurst CJ agreed with both Basten and Ward JJA on issues other than one substantive question, which his Honour identified (see [28]). Accordingly, it appears to me that the holding of Hoeben CJ at CL at first instance, as I have summarised it at [17] has been endorsed in the Court of Appeal and would be binding upon a single judge with respect to the operation of s 111(3).

13. [21]

    As s 80(3) is indistinguishable from s 111(3), I consider that I am bound to hold that it, also, prevents the Court from making an effective order under r 59.9 that the Commission “provide the plaintiff with a copy of” the reasons. I would independently have reached that conclusion about the interpretation of s 80(3) and its interaction with r 59.9, for the following reasons.

14. [22]

    The plaintiff argued that insofar as s 80(3) states Commission officers “cannot be required… to produce in court any document” of a class which would include the reasons, the words “produce in any court” should be interpreted as prohibiting only a requirement that the Crime Commission produce documents physically in a court room or building or to a judicial officer.

15. [23]

    I do not consider that such an interpretation of the words is sustainable. In normal usage within the law of procedure in New South Wales, where it is intended to refer to the placing of documents in the hands of a court, whether at a registry or exhibits office or in a courtroom with a judicial officer present, the preposition “to” is used in the prepositional phrase “to the court”. That usage may be seen in the following examples in the UCPR (emphasis added):

16. [24]

    One does not find in the UCPR any usage of the expression “produce in [any] court” to describe the placing of documents in the hands of either a judicial or an administrative officer of a court. The prepositional phrase “to any court” which appears so commonly in the UCPR is used in subs (3)(b) of s 80, with respect to exempting Crime Commission personnel from any requirement “to divulge or communicate to any court any matter or thing etc” (emphasis added).

17. [25]

    These considerations are in my opinion sufficient to show that subs (3)(a) of s 80, by exempting Crime Commission personnel from being “required to produce in any court any document”, is intended to create a wider exemption than that which would arise if this subsection provided that such personnel could not be required to produce to any court any document. The choice of preposition is a conspicuous point of difference from the drafting of the UCPR provisions cited above as examples. It is a choice which must be taken to have been deliberate and to have been intended by Parliament to convey something different from the familiar expression “produce to the court” which is commonplace in civil procedure.

18. [26]

    The use of the preposition “in” has the effect that the phrase “produce in any court any document” is apt to describe any production of a document under court procedures or pursuant to the control and direction of any court in the exercise of its jurisdiction. That is how I interpret subs 3(a), with the consequence that an order under r 59.9 that the Crime Commission should produce the reasons to the plaintiff would be a requirement imposed upon personnel of the Commission, to whom s 80 applies, that they “produce in [the Supreme Court] any document that has come into the person’s possession, custody or control because of, or in the course of the exercise of the person’s functions under this Act”. By force of subs 3(a) such a requirement “cannot” be imposed. The Court is forbidden from making the order for production of the reasons under r 59.9, as sought by the plaintiff’s notice of motion.

Reasons for not exercising the r 59.9 discretionary power

1. [27]

   The power of a court to order provision to the plaintiff of the reasons under r 59.9 is clearly discretionary. Even if s 80(3) were not an absolute legislative bar to an order for production of reasons for decision of the Crime Commission, the existence of a secrecy provision such as s 80 would be a powerful consideration against making such an order. By force of s 19(1) Crime Commission Act, hearings are held by the Commission “for the purpose of an investigation”. Hearings are to be held in private: s 21. The power to issue an examination summons, contained in s 24, is to facilitate the conduct of hearings and thereby to further any investigation to which hearings may relate.

2. [28]

   It follows that necessarily, in every case where an examination summons is issued, the reason for its issue will relate to an ongoing and incomplete investigation. As can be seen from s 10 Crime Commission Act the Commission’s investigations are in all cases concerned with criminal activities. The Commission’s reasons for issuing an examination summons will be based upon evidence, intelligence and/or some other basis for suspicion. This is the sort of material which, in performance of its statutory functions, the Commission would need to keep confidential at least until the completion of its investigation and the laying of charges (if that should occur). Section 80, seen in the setting of this Act, has an evident purpose of maintaining secrecy and confidentiality for intelligence and partial information of the kind which the Commission might hold at any point and which might be the basis for it pursuing an investigation through examination of a person summonsed.

3. [29]

   An order under r 59.9 for the provision of the Commission’s reasons for issuing an examination summons would force exposure of this intelligence and other partial information precisely at the point where s 80 would be engaged to preserve its secrecy. These considerations are discretionary factors which would in most cases tell very strongly against the Court making an order under r 59.9. In the present case having examined the reasons which are comprised in Confidential Exhibit 2, I find these considerations to be of overwhelming weight against making the order for which the plaintiff has applied.

4. [30]

   A further consideration relevant to the exercise of the discretion is the lack of any useful purpose to be served by ordering provision of the reasons to the plaintiff. The final relief sought in the summons is not such as could be supported by anything which may appear in the reasons.

5. [31]

   The summons seeks, at para 1, an order that the plaintiff be referred to by a pseudonym. This has been granted. Paragraph 2 is in these terms:

6. [32]

   There is no basis for this relief to be granted substantively. An administrative body is not under any general duty at common law to give reasons for its decisions: Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656. The obtaining of the Commission’s reasons by the plaintiff through a discretionary order under r 59.9 could have no possible bearing upon the final determination of the merits of the plaintiff’s claim for a declaration that the Commissioner was obliged to provide these reasons to it. An order under r 59.9 in exercise of the Court’s discretion would pre-empt the final determination on the merits of this claim for relief.

7. [33]

   I consider that that would be an entirely wrong and unjustified exercise of discretion in circumstances where the Crime Commission has a sound basis for invoking the principle in Public Service Board of NSW v Osmond. Namely, the considerations outlined in [27] – [29]. There is no contest by the defendant that it has not supplied the reasons. The plaintiff will succeed or fail in its application for order 2 according to the outcome of legal argument about whether reasons were required to be given. The content of the reasons does not need to be seen by the plaintiff in order to run that argument.

8. [34]

   Paragraph 3 of the relief sought by the plaintiff on a final basis is as follows:

9. [35]

   The summons includes a statement of the grounds upon which the various heads of relief are claimed. The sole ground for para 3 is following:

10. [36]

    Whether or not the plaintiff is entitled to a declaration that the examination summons is non-compliant with s 24(4) will turn upon the Court’s assessment of the description of “the general nature of the matters about which the Commission intends to question” the plaintiff as set out on the face of the summons. The following description of the subject matter of the proposed questioning is given on the first page of the summons:

11. [37]

    This notification is to be measured against the requirements of s 24(4) as follows:

12. [38]

    It would seem a very difficult task for the plaintiff to persuade the Court that the description which appears on the face of the summons to the plaintiff does not satisfy s 24(4). This part of the case involves a simple comparison of the wording of the examination summons with its statutory criterion. The Commission’s reasons for issue are irrelevant to that comparison.

13. [39]

    Lastly, the summons claims these orders:

14. [40]

    The grounds pleaded by the plaintiff in support of these two heads of relief are as follows:

15. [41]

    As to Ground 1, at the final hearing of the plaintiff’s summons the question of whether the Commission was bound to accord the plaintiff procedural fairness in relation to its decision to summons him and the extent of the procedural fairness, if any, required to be accorded will turn upon application of the threshold test laid down in Kioa v West (1985) 159 CLR 550. In the words of Sir Anthony Mason at 159 CLR 582:

16. [42]

    His Honour said further and to the same effect, at 584:

17. [43]

    Brennan J endorsed a threshold test expressed in terms to the same practical effect, albeit that his Honour founded this upon implication from statute of an obligation to accord procedural fairness, rather than imposition of that obligation by the common law. His Honour said at 610:

18. [44]

    Brennan J further said at 612:

19. [45]

    In order to establish, at the final hearing of the plaintiff’s claim, that the Crime Commission was bound to accord him procedural fairness to the extent of hearing him before issuing the summons, the plaintiff will have to identify some affectation of his interests, in the sense referred to by Sir Anthony Mason in the passages quoted above. In the evidence and arguments presented on hearing of the notice of motion I have not discerned any interest of the plaintiff which would be affected in such a way as to entitle him to procedural fairness. Merely being required to answer questions in a hearing before the Commission does not appear to meet this threshold requirement. I am not aware of any authority for the proposition that being required to give evidence, in the setting of this or similar legislation, relevantly affects the examinee’s rights in the manner necessary to attract an obligation of the decision maker to accord procedural fairness before requiring the examinee to attend. Further the very nature of the legislation and the limited express provisions for review of Commission decisions (ss 33 and 38) combine to indicate a legislative intention to exclude any obligation of procedural fairness in connection with issuing an examination summons.

20. [46]

    In any event, the reasons upon which an administrative body arrives at its decision can have no possible bearing upon the question whether or not procedural fairness should have been accorded or, if so, whether such fairness should have included an opportunity for the plaintiff to be heard. The plaintiff’s contention that the Commission has erred in deciding to issue the examination summons without hearing him in opposition cannot be affected one way or another by the making of an order under r 59.9. The right to procedural fairness, if it exists, would spring from the nature of the decision which was made and would be unaffected by the reasons for making it.

21. [47]

    The same applies to Ground 2 quoted at [40] above. If the plaintiff was entitled to procedural fairness and if this required the provision to him of a statement of reasons for the decision, that would emerge from consideration of the Crime Commission Act and the tests in Kioa v West. The plaintiff’s contention will not be affected, for or against, by anything that may appear in the reasons which the Commission actually adopted and acted upon. Again, it would be a wrong exercise of the discretion conferred upon the Court by r 59.9 to pre-empt the final determination of this highly contentious ground by ordering provision of the reasons to the plaintiff upon an interlocutory application.

Public interest immunity

1. [48]

   The plaintiff’s claim for public interest immunity in respect of the reasons appears to me to be governed by s 130 Evidence Act 1995 (NSW). Section 130 appears in Div 3 of Pt 3.10 of that Act. Section 131A, in Div 4, provides as follows, (extracted so far as relevant):

2. [49]

   In s 131A(2) Evidence Act 1995 the definition of “disclosure requirement” is expressed as including items (a) – (f). Although an order under r 59.9 is not within any of those items, I consider that such an order would be “a process or order of a court that requires the disclosure of information or a document”.

3. [50]

   Therefore, applying sub s (1) of s 131A one looks to see whether this “disclosure requirement”, applied to the reasons comprised in Confidential Exhibit 2 on this notice of motion, “would result in the disclosure of a … document or its contents or other information of a kind referred to in Div … 3”. Relevantly for present purposes, that requires consideration of whether the Commission’s reasons would fall within s 130. If they would then, given that the Commission objects to providing the document, “the Court must determine the objection by applying the provisions of [Part 3.10] (other than sections 123 and 128) with any necessary modifications as if the objection to … producing the document were an objection to the giving or adducing of evidence”: s 131A(1).

4. [51]

   The relevant sub sections of s 130 are as follows:

5. [52]

   Having examined the Commission’s reasons in Confidential Exhibit 2 and considered a confidential affidavit of Robert B Inkster sworn 20 November 2015 in support of the public interest immunity claim (Confidential Exhibit 1 on the notice of motion), I am satisfied that if I were to make the order sought by the plaintiff for production of the reasons this would prejudice the investigation of an offence within the meaning of s 130(4)(c). I am further satisfied that other subparagraphs of s 130(4) would be engaged. I will refrain from identifying them in order to avoid thereby implicitly revealing any aspect of the nature of the information in the reasons.

6. [53]

   It follows that, within the meaning of s 130, the subject reasons are “a document that relates to matters of state”. I am therefore required to balance the public interest in ordering production of such a document to the plaintiff against the public interest in “preserving secrecy or confidentiality in relation to the information or document”: see s 130(1). To undertake this balancing exercise I have regard to the subparagraphs of s 130(5).

7. [54]

   For reasons I have given at [30] to [47] above, I do not see that the reasons are of any importance at all to the plaintiff’s substantive claims for relief or to the grounds upon which those claims are pursued. On the other hand, I consider that the likely effect of ordering production of these reasons would be significantly adverse to the effective discharge by the Crime Commission of its responsibilities. The matters being investigated by the Commission, as disclosed on the face of the summons and quoted at [35] above, include possible support of terrorist groups and of terrorist related activities.

8. [55]

   The importance to public safety and national security of conducting an investigation of that nature without the interference of being obliged to disclose intelligence and partial information before the investigation is complete is of obvious and substantial importance. It would outweigh the public interest in disclosure for the purpose of these proceedings even if the reasons were significantly material to the litigation of the plaintiff’s summons. As it happens, they are not material to the substantive proceeding and the balance is all one way.

9. [56]

   If I am wrong in my analysis of s 131A and s 130 Evidence Act 1995 and if the claim for public interest immunity ought properly be decided not under that Act but according to common law principles, the same considerations would be relevant, the same balancing exercise would have to be undertaken and the outcome would be the same: Young v Quin (1985) 59 ALR 225 at 234 – 237; Beneficial Finance v Australian Federal Police Commissioner (1991) 52 A Crim R 423; 31 FCR 523 at 550 – 553; Alister v R (1984) 154 CLR 404.

Conclusion

1. [57]

   The defendants have sought a specified sum costs order pursuant to s 98(4)(c) Civil Procedure Act 2005 and an order pursuant to r 42.7(2) that their costs under such order be paid forthwith. I consider this an appropriate case for making orders of that kind. The plaintiff’s application for an order under r 59.9 in relation to the Crime Commission’s reasons was extremely ambitious. It should have been seen before the notice of motion was issued that it had negligible prospects of success.

2. [58]

   Where the Commission is undertaking an ongoing investigation and furtherance of that investigation is clearly the purpose of an examination summons being issued, the matters taken into account by the Commission in deciding to issue the summons would invariably be highly sensitive and confidential. The plaintiff’s application to obtain the Commission’s reasons was in effect an endeavour to gain access to a summary of the Commission’s intelligence holdings and the results of its investigation to date. Prior to the plaintiff filing his notice of motion he was informed in correspondence that public interest immunity was claimed. In the circumstances it was inevitable that that claim would be upheld. I consider that the plaintiff should be required forthwith to pay the defendant’s costs of this unmeritorious and improbable application.

3. [59]

   In arriving at a specified sum I have considered the affidavit of Ms S M Johnson sworn 2 December 2015. Ms Johnson has deposed that total costs incurred on the motion if assessed by a costs assessor on a party/party basis, would be between 65% - 80% of $10,456 exclusive of GST. That is, within the range of $6,796.40 - $8,364.80 exc GST. The rates at which this has been calculated and the number of hours allocated to the work appear to me to be entirely reasonable. I accept that evidence and will award an amount rounded down to $8,000 exclusive of GST, to be paid within 28 days.

4. [60]

   For these reasons the orders of the court will be

   1. (1)

      The plaintiff’s notice of motion filed 16 October 2015 is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs of the notice of motion.

   3. (3)

      The costs payable under Order 2 are fixed at $8,800 inclusive of $800 in GST pursuant to s 98(4)(c) Civil Procedure Act 2005.

   4. (4)

      The plaintiff is to pay the costs awarded under Order 3 within 28 days.