State of New South Wales v Avakian (No 2)

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

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

6. [6]

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

7. [7]

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

8. [8]

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

9. [9]

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

10. [10]

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

Legal principles

1. [11]

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

2. [12]

   Section 6 requires the Court to take into account:

3. [13]

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

4. [14]

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

5. [15]

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

6. [16]

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

7. [17]

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

8. [18]

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

9. [19]

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

The bases for the application

1. [20]

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

Determination

1. [21]

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

2. [22]

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

3. [23]

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

4. [24]

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

5. [25]

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

6. [26]

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

7. [27]

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

8. [28]

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

9. [29]

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

10. [30]

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

11. [31]

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

12. [32]

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

13. [33]

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

14. [34]

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

15. [35]

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

16. [36]

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

17. [37]

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

18. [38]

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

19. [39]

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

20. [40]

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

21. [41]

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

22. [42]

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

23. [43]

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

24. [44]

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

25. [45]

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

26. [46]

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

27. [47]

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

28. [48]

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

29. [49]

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

30. [50]

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

31. [51]

    Accordingly, I make the following orders: