Procedural fairness and maintaining confidentiality in the identity of complainants

On 29 May 2018, the New South Wales Court of Appeal handed down judgment in Summersford v Commissioner of Police. The judgment is interesting for two reasons. First, it adds to a small but growing body of jurisprudence that deals with how the rules of procedural fairness should be applied in circumstances where there is a compelling public interest in keeping sensitive information that is relevant to an administrative decision out of the hands of a person whose interests are liable to be affected by the decision. Second, it adds to a growing number of judgments in which judges outside of Victoria have expressed disapproval of aspects of the judgment of Kyrou J in Shields v Overland. It thus potentially poses a difficult conflict of authority for judges trying judicial review proceedings in the Supreme Court of Victoria.

In Summersford, the appellant was a high-ranking police officer. In 2015, a junior officer made an anonymous complaint alleging that the appellant had sexually harassed a number of other police officers. An Inspector determined that the complaint should be investigated under Part 8A of the Police Act 1990 (NSW). In conducting his investigation, the Inspector contacted 25 police officers who had worked under the appellant and required them to identify whether they had witnessed the appellant engaging in harassing behaviour. A number of those officers provided written statements denying that the appellant had engaged in such behaviour, while others provided statements confirming that they had witnessed him engaging in misconduct of the kind alleged by the anonymous complainant. The Inspector compiled a report into the appellant’s conduct and provided it to a Superintendent. The Superintendent then conducted an interview with the appellant, at which he read to the appellant all of the allegations that had been made against him, but did not identify which officers had made those allegations. After the interview, the Superintendent determined that the allegations made by the anonymous complainant had been substantiated and that disciplinary action would be taken against the appellant.

Following the Superintendent’s decision, the appellant obtained a redacted copy of the Inspector’s report. Again, this did not identify which police officers had made allegations against the appellant. The appellant then requested that an Assistant Commissioner set aside the Superintendent’s decision. This request was denied. Finally, after his request for review had been denied by the Assistant Commissioner, the appellant was provided with an unredacted copy of the Inspector’s report. This both identified each of the officers who had made allegations against the appellant and stated that a number of officers had provided statements denying that they had witnessed any improper behaviour on his part.

The appellant sought judicial review of both the Superintendent’s decision to take disciplinary action against him and the Assistant Commissioner’s decision not to set the Superintendent’s decision aside. In relation to both decisions, the appellant submitted that he had been denied procedural fairness on the basis that he had not been advised of the identities of the officers who had made allegations against him and had not been provided with any of the exculpatory material contained in the Inspector’s report.

At trial, the primary judge held that each person who had made allegations against the appellant was a ‘complainant’ within the meaning of s 169A of the Police Act and that none of their identities could lawfully have been disclosed to the appellant before the impugned decisions were made. His Honour further held that the rules of procedural fairness did not require the Superintendent or the Assistant Commissioner to disclose the exculpatory information contained in the Inspector’s report to the appellant.

The Court of Appeal rejected the primary judge’s holding that each of the police officers who had made a witness statement that was adverse to the appellant was a ‘complainant’ within the meaning of s 169A. However, the Court held that cl 53 of the Police Regulation 2008 nevertheless prohibited the identities of those officers from being disclosed to the appellant. In response, the appellant submitted that cl 53 was ultra vires because it was inconsistent with the implied obligation of procedural fairness contained in the Police Act. The Court rejected this submission, holding that it was not inconsistent with the requirements of procedural fairness for the Police Regulation to impose limits on the disclosure of the identities of persons who had made allegations against police officers.

On this issue, the judgment is consistent with the views expressed by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, by the Federal Court in Leghaei v Director-General of National Security  and by the Victorian Court of Appeal in Chief Commissioner of Police v Nikolic. Those cases hold that where sensitive information that is adverse to a person whose interests are liable to be affected an administrative decision has been provided to the decision-maker in confidence, it will not necessarily be inconsistent with the rules of procedural fairness for the decision-maker to rely on the information while providing only its ‘gist or substance’ to the person (or even withholding the information entirely). However, because of the specific provisions of the Police Regulation, the judgment does not address the broader question when a statutory scheme that is silent on the issue of withholding relevant information will nevertheless impliedly authorise a decision-maker to withhold sensitive information the disclosure of which would, but for its sensitivity, be necessary to ensure compliance with the rules of procedural fairness. On the basis of the decided cases, all that can be said is that whether a decision-maker will be entitled to act on the basis of undisclosed adverse information depends on a range of factors, including the nature of the information and the subject and purpose of the legislation under which the proposed decision falls to be made. Unfortunately, Summersford provides no further clarification of this issue.

As noted above, the other significant feature of the judgment in Summersford is its treatment of Shields v Overland. In that case, Kyrou J stated that:

In appropriate cases, and especially where the decision-maker has exclusive knowledge of specific information, the hearing rule requires the decision-maker to provide to a person affected not only material that is adverse to that person, but all material that has substantive relevance to the matter in issue – including, in particular, any exculpatory material – whether or not the decision-maker proposes to rely upon it.

On the basis of this statement of the law, the appellant submitted that the statements set out in the Inspector’s report that were supportive of his case should have been disclosed to him before the Superintendent decided to take disciplinary action and/or before the Assistant Commissioner declined to review the Superintendent’s decision. The Court rejected this submission, endorsing the view expressed by Kenny J in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs that insofar as it stands for the proposition that procedural fairness may require a decision-maker to disclose to a person whose interests are liable to be affected by an administrative decision information that is not adverse to him or her, Shields v Overland should not be followed.

The Court’s treatment of Shields v Overland presents a difficult conflict of authority for trial judges in Victoria. Comity ordinarily requires both that a single judge of the Supreme Court apply the reasoning of other single judges of the Trial Division and that they apply the reasoning of interstate appellate courts, unless that reasoning is clearly wrong. However, where two such judgments are in direct conflict, that conflict cannot be resolved merely by determining that one or both of the judgments is or is not clearly wrong; it is necessary to decide which one is right. Assuming that this issue is not resolved by the High Court in the meantime, it will be interesting to see what approach is taken the next time the issues that arose in Shields v Overland arise in a judicial review proceeding in the Trial Division of the Supreme Court of Victoria.

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