In s 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW), “necessary” identifies a standard as to which the Court must be satisfied before making an order. Mere belief that an order is necessary is insufficient.

State of New South Wales v Avakian (No 2) [2021] NSWSC 677 (17 June 2021)

Intro:-

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).

Facts:-

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.

The Committee is established and constituted by the provisions of Pt 4A of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHROA)

Legal principles

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:-

(c) the order is necessary to protect the safety of any person,

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

Section 6 requires the Court to take into account:-

"that a primary objective of the administration of justice is to safeguard the public interest in open justice."

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.

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.

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

"The authorities have considered two possible approaches to the interpretation of s 8(1)(c), the so-called “calculus of risk” approach and the “probable harm” approach. The calculus of risk approach requires the court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility. The second postulated interpretation, the probable harm approach, requires an applicant to prove that, in the absence of an order, it would be more probable than not that the relevant person would suffer harm.

We regard the statement extracted from Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim at [46] as consistent with the calculus of risk approach. We do not consider the second approach to be consistent with the words of s 8(1)(c). The evident purpose of s 8(1)(c) is to provide a mechanism to protect the safety of persons who would otherwise be endangered by publication of proceedings in accordance with the principles of open justice."

Issues:-

a) Were the safety of the Committee members 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?

b) Would the disclosure of the names have the effect of limiting the expression of full and frank views, and inhibiting discussion and debate between the Committee members?

c) Were the expectation held by members, 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 justified?.

Analysis:-

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:

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”

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.

Ground 1 - Safety of the members

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

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.

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. 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.

Ground 2 - Discussion inhibited

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.

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.

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.

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.

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.

3) Expectation of confidentiality

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

12. The Committee members generally hold an expectation that the records of meetings will be kept confidential.

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.

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.

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.

Conclusion:-

1, The plaintiff’s notice of motion filed 17 March 2021.

2. The plaintiff is to pay the defendant’s costs.

3. The publication restriction in respect of State of New South Wales v Avakian (Preliminary) [2021] NSWSC 245 is lifted.

4. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.