Ruyters v Commissioner of Police [2021] NSWCATAD 41

Read the decision here: Ruyters v Commissioner of Police [2021] NSWCATAD 41

Summary

In 2010, Ms Keli Lane (Ms Lane) was convicted of the murder of her daughter, Tegan, and sentenced to a term of imprisonment. Dr Michelle Ruyters (the applicant) from Bridge of Hope Innocence Initiative made an application on Ms Lane’s behalf to the Commissioner of Police, NSW Police Force (the respondent) under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to recordings and transcripts of communications intercepted by the NSW Police Force under warrants issued pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) during the course of its investigation into the disappearance and death of Tegan Lane.

On 4 December 2018, the respondent refused access to the information because the information was created by State Crime Command and affected law enforcement and public safety under clause 7(c) of Schedule 1 of the GIPA Act. The applicant subsequently applied to the Tribunal for an administrative review of the decision. The Tribunal required the respondent to reconsider its decision under section 65 of the Administrative Decisions Review Act 1997 (ADR Act).

On 4 April 2019, the respondent wrote to the Tribunal advising that the information sought was not contained in documents created by the State Crime Command and accordingly the original basis for the decision could not be maintained. The letter also advised that a new decision could not be made because there is a conflict between the GIPA Act and the TIA Act and that conflict resulted in invalidity of the impacted provisions of the GIPA Act, in accordance with section 109 of the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution). The respondent applied to the Tribunal to dismiss the application because the application could not be lawfully made because of this inconsistency.

The Tribunal refused the respondent’s application and confirmed that the reviewable decision was the respondent’s decision of 4 December 2018. The Tribunal found that the GIPA Act and the TIA Act can be read together without offending the Constitution. The Tribunal found that the public interest considerations against disclosing secret and personal information outweighed the public interest considerations in favour of disclosure.

What you need to know

The GIPA Act and the TIA Act can be read together without offending section 109 of the Constitution. The requirement to conduct reasonable searches under section 53 of the GIPA Act, the requirement to consult third parties under section 54 of the GIPA Act and the public interest test under section 13 of the GIPA Act do not necessarily require an agency to “make use of” intercepted information, which is prohibited under section 63(1) of the TIA Act.

It is only in circumstances where an agency finds that there is no overriding public interest against disclosure that an access applicant must be provided with access to information. If that is the case, then there may be an inconsistency between the provisions of the GIPA and TIA Acts which would require consideration of section 109 of the Constitution.

Legislative background

GIPA Act

• Section 12 public interest considerations in favour of disclosure
• Section 13 public interest test
• Section 14 public interest considerations against disclosure – clause 6 secrecy provisions
• Section 53 searches for information held by agency
• Section 54 consultation on public interest considerations
• Section 55 consideration of personal factors of application
• Section 58 how applications are decided
• Clause 7 of Schedule 1 information for which there is conclusive presumption of overriding public interest against disclosure - documents affecting law enforcement and public safety

TIA Act

• Section 63 no dealing in intercepted information or interception warrant information
• Section 67 dealing for permitted purpose in relation to agency

Review requirements and jurisdiction

• ADR Act
• Section 63 determination of administrative review by the Tribunal
• Section 65 power to remit matters to administrator for further consideration
• The Constitution
• Section 109 inconsistency of laws

Factual background

In 2010, Ms Lane was convicted of the murder of her daughter, Tegan, and sentenced to a term of imprisonment. The applicant represented the Bridge of Hope Innocence Initiative which petitioned the NSW Attorney-General to review Ms Lane’s conviction.

On 27 March 2018, the applicant, on behalf of Ms Lane, made an application to the respondent under the GIPA Act seeking access to recordings and transcripts of telephone conversations and text messages intercepted by the NSW Police Force under warrants issued pursuant to the TIA Act during the course of the NSW Police Force’s investigation into the disappearance and death of Tegan Lane.

On 4 December 2018, the respondent decided to refuse access to the information on the basis that the documents sought were created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence and were therefore subject to a conclusive presumption that there was an overriding public interest against disclosure under clause 7(c) of Schedule 1 of the GIPA Act. The applicant subsequently sought an administrative review of the decision by the Tribunal.

On 12 February 2019, the Tribunal remitted the decision to the respondent for reconsideration pursuant to section 65 of the ADR Act.

On 4 April 2019, the respondent wrote to the Tribunal noting:

• the basis upon which the decision was made on 4 December 2018 was in error as further inquiries showed that the information sought was not contained in documents created by the State Crime Command and accordingly the original basis for the decision under review could not be maintained;
• the respondent had formed the view that he could not make a new or varied decision on the access application. The respondent stated that there was a conflict between the provisions of the GIPA Act and the TIA Act which rendered the GIPA Act, to the extent of the inconsistency, invalid in accordance with section 109 of the Constitution. The respondent submitted that the right to be provided with access to government information under section 9(1) of the GIPA Act cannot extend to information the subject of a prohibition on disclosure under the TIA Act.

On 17 May 2019, the respondent filed an application seeking a summary dismissal of the proceedings, however the Tribunal refused that application. This matter concerned the substantive issues in dispute, being:

1. What was the decision under review and did the Tribunal have jurisdiction to review it?
2. Was there an inconsistency between the GIPA Act and the TIA Act?
3. If so, what were the consequences of inconsistency for the disposition of the application?
4. If there were no inconsistency, how was the application to be determined?

Tribunal findings

What was the decision under review and did the Tribunal have jurisdiction to review it?

In determining that the respondent’s letter dated 4 April 2019 was no more than a letter which conveyed to the Tribunal the respondent’s view that the 4 December 2018 decision lacked an evidentiary basis, the Tribunal had regard to the fact that the letter:

• was addressed to the Registrar of the Tribunal and not the applicant;
• was not written by someone with delegated authority to make decisions for the NSW Police Force under the GIPA Act; and
•  did not refer to the applicant’s access application.

The Tribunal found that the effect of the 4 April 2019 letter was that the respondent had exercised his discretion not to make a decision on the matter which had been remitted under section 65 of the ADR Act, a course permitted by that Act [25]. The Tribunal confirmed that the reviewable decision was the respondent’s decision of 4 December 2018. The Tribunal did however note that there was considerable force to the proposition that a refusal by a decision maker to make a decision because the decision maker considers that a decision cannot lawfully be made, which is deemed by section 6(4) of the ADR Act to be “a decision made under the enabling legislation to refuse to make the decision requested”, is a decision “to refuse to provide access to information in response to an access application”, and is therefore a decision that is reviewable by the Tribunal under section 80(d) of the GIPA Act [28].

Was there an inconsistency between the GIPA Act and the TIA Act?

The respondent submitted that because the information sought by the applicant was lawfully intercepted within the meaning of section 6E of the TIA Act, section 63 of the TIA Act prohibited the respondent from (a) “making use of” the information or (b) “communicating” the information to the applicant. The Tribunal held that the terms “make use of” and “use” should be given their ordinary meaning [54].

The Tribunal found that the GIPA Act and the TIA Act can be read together in such a way as to not offend section 109 of the Constitution [69]. In relation to inconsistency between the GIPA Act and TIA Act regarding “making use of” intercepted information, the Tribunal found:

• conducting reasonable searches to find government information pursuant to section 53(2) of the GIPA Act does not necessarily involve making use of information within the meaning of the TIA Act. It is the identification of information as intercepted information that is key and this can be achieved without reviewing, reading, or listening to information [62].
• intercepted information may relate to third parties. In those circumstances, an agency is required to consult with the third party under section 54 of the GIPA Act before providing access to that information. There may be some circumstances where it is impossible for an agency to form the state of mind referred to in section 54(1) without making use of the information, which would include reading or listening to the intercepted information to ascertain its contents. In those circumstances, in complying with its obligation under the TIA Act, an agency will not be able to form the opinion in section 54(1) of the GIPA Act, in particular that in section 54(1)(a), and will therefore not be under a duty to consult [64]. If the agency is of the opinion that matters (a) to (c) in section 54 are present, then it will not be “reasonably practicable” to consult with third parties, as to do so would cause the agency to contravene section 63(1) of the TIA Act.
• the public interest test under section 13 of the GIPA Act, which requires an agency to determine what are the public interest considerations for and against disclosure and then balance those, would not necessarily involve making use of the intercepted information itself. Public interest considerations, such as clause 6 of the Table to section 14 of the GIPA Act, can be broad and therefore not require an examination of the detail of the information to which access is sought [65].

In relation to inconsistency between the GIPA Act and TIA Act regarding “communicating” intercepted information, the Tribunal provided practical guidance:

• where it is necessary for information to be communicated from the section of the agency that holds the information to an officer authorised to process GIPA applications and the agency is concerned that the information is subject to section 63(1) of the TIA Act, the agency can limit the staff who assist in responding to the application, thereby avoiding the risk of unlawful communication [67].
• in relation to communicating the information to the applicant, the GIPA Act did not require the respondent to provide the applicant with access to the intercepted information. It is only in circumstances where an agency finds that there is no overriding public interest against disclosure that an access applicant must be provided with access to information. If that is the case, then there may be an inconsistency between the provisions of the GIPA and TIA Acts which would require consideration of section 109 of the Constitution [68].

Public interest test

In undertaking the public interest test under section 13 of the GIPA Act, the Tribunal balanced:

• the public interest considerations in favour of disclosure under section 12(1) of the GIPA Act, particularly that the information was Ms Lane’s personal information;
• the personal factors of the application under section 55(1) of the GIPA Act; and
• the public interest considerations against disclosure in the Table to section 14 of the GIPA Act (clauses 3(a) and 6(1)).

The Tribunal determined that the public interest considerations against disclosure outweighed the public interest considerations in favour of the disclosure. In making its decision, the Tribunal placed significant weight on the policy considerations behind the prohibition on disclosure of intercepted information under section 63(1) of the TIA Act. The Tribunal stated that the TIA Act, for good reason, prohibits the interception of communications over a telecommunications system without the knowledge of the person making the communication and recognised the exception - if the interception is authorised by a properly obtained warrant. The Tribunal stated that it would be out of keeping with the general prohibition on interceptions if intercepted information obtained either lawfully or unlawfully could be readily disclosed [91].  

Tribunal outcome

The Tribunal affirmed the decision under review.