Lambell v Department of Justice and Attorney General [2011] NSWADT 23 (3 February 2011)

Last Updated: 17 April 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Lambell v Department of Justice and Attorney General
Medium Neutral Citation:	[2011] NSWADT 23
Hearing Date(s):	On the papers
Decision Date:	03 February 2011
Jurisdiction:
Before:	P Molony, Judicial Member
Decision:	1. In accordance with s 57(3) of the Freedom of Information Act 1989 the Tribunal requires the Department of Justice and Attorney General to produce to the Tribunal, on a confidential basis, documents responsive to Mr Lambell's request within 30 days of this decision. 2. Following production under order 1, this matter is to be listed for a further planning before me on Friday 8 April 2011 at 10.00am. 3. I direct that a copy of all the materials filed in this proceeding, together with a copy of these reasons and a notice of hearing for the next planning meeting be served by the Agency on the Minister responsible for administering the Freedom of Information Act 1989.
Catchwords:	Freedom of Information Act - reasonable grounds
Legislation Cited:	Freedom of Information Act 1989 Government Information (Public Access) Act 2009 Listening Devices Act 1984 Surveillance Devices Act 2007
Cases Cited:	Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180 Centrelink v Dykstra [2002] FCA 1442 Dezfouli v Department of Corrective Services [2007] NSWADT 25 Dunstan v Commissioner, Department of Corrective Services [2004] NSWADT 177 McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 O'Sullivan v Victoria Police [2005] VCAT 532 IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 Richards v Clarence Valley Council [2009] NSWADT 243
Texts Cited:
Category:	Principal judgment
Parties:	Robert Lambell (Applicant) Department of Justice and Attorney General (Respondent)
Representation
- Counsel:
- Solicitors:	R Lambell (Applicant - in person) J Kananagh (Respondent)
File number(s):	103002
Publication Restriction:

REASONS FOR DECISION

Background

1. On 20 July 2009 Mr Lambell made application under the Freedom of Information Act 1989 to Department of Justice and Attorney General (the Agency) for "the application dates for the listening device warrants ST 03/06 (a) & (b), Reference ST 03/035 (a) & (b) issued by the Supreme Court of New South Wales."
2. Those listening device warrants authorised the recording of conversations between Mr Lambell and an undercover Police officer in early 2003, which recordings were subsequently relied on in Mr Lambell's prosecution for two counts of solicit to murder.
3. After a voire dire as to the admissibility of those recordings before His Honour Judge Graham, the recordings were admitted in evidence against Mr Lambell. Mr Lambell subsequently pleaded guilty to two charges of solicit to murder and was sentenced, on both counts, to nine years imprisonment, with a non-parole period of six years, to be served concurrently. In the course of his judgment of 27 February 2004 on sentencing His Honour made the following findings -

"Firstly, it is clear that the offender was seeking to outline to the undercover officer a proposal which would involve a slow, painful and distressing death for each of the two men named in the indictment here. They would be, in effect, tortured and left to die in an isolated location." (p 25-26)

...

"...by the last meeting, at the end of which the offender was arrested in a motel room in Dubbo, the point had been reached where an event was imminent which would, if carried through to fruition, have been a conclusion of the arrangements arrived at between the offender and the undercover officer. Not only was there discussion but the offender had, in his car, a document which contained what are capable of being construed as precise directions to a location, which was consistent with one he had described to the undercover officer. He also had with him, in the car, a number of items which he has, item by item, sought as it were to explain away but which, overall, in my view, are consistent only with an intention on his part to assist the undercover officer, by either participating in an offence himself with the undercover officer or providing the undercover officer with equipment by which that offence could be committed."(p 26).

...

"The offender had plenty of time to consider his position from 22 or 23 January up to 9 February. There is a period of a number of days where there was no communication other than a short telephone call. The offender had plenty of time to consider whether he should go ahead with this plan or not." (p 28)

...

"These preparations went on over a long time and involved more than mere discussions, but included the scouting of an appropriate and remote location and the bringing to the last meeting of the implements I have described." (p 31).

4. On 27 August 2009 the Agency identified two packets responsive to the request, to which access was refused under clause 4(1)(e) of Schedule 1 of the Act.
5. On 22 September 2009 Mr Lambell sought an internal review of that decision. On 9 October 2009 the Respondent made a determination confirming the decision to refuse Mr Lambell access to the information requested on the same grounds. Mr Lambell then sought external review by the Ombudsman. On 15 December 2009 the Ombudsman agreed with the Agency's decision.
6. On 14 January 2010 Mr Lambell filed an application to review that decision with this Tribunal. Initially the Agency raised issues going to the jurisdiction of the Tribunal to consider Mr Lambell's review application. That objection was subsequently withdrawn. It was subsequently agreed that the issues in dispute could be adequately determined on the papers and directions were made for the filing of evidence and submissions. I remain of the view that the issues for determination can be adequately determined in the absence of the parties on the papers.
7. In making determination under the Freedom of Information Act 1989 it is important to bear in mind that Section 61 of the Act provides that -

"In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister."

Material before the Tribunal

8. The Agency relied of the following material it had filed:

- Copies of the original FOI request and decisions.

- Copies of the internal review request and internal review decision.

- Submission filed 16 July 2010.

- Statement of Joanna Sutton

- Submission in reply filed 13 September 2010.

9. Mr Lambell filed his submission on 18 August 2010. Annexed to his submissions were:

- A copy of a subpoena for production addressed to the Commissioner of Police in the matter of R v Robert Arthur Lambell dated 22 October 2003.

- Affidavit sworn 3 November 2003 by Inspector Dawson in support of an application to set aside the above subpoena on the grounds of oppression.

- Statement of Senior Constable Buggy dated 6 April 2003.

- Copy front sheet of indictable brief in Police v Robert Lambell at Coonamble Court on 22 January 2003.

Issues for determination

10. In submissions the Agency has relied on clause 4(1)(c) of Schedule 1, rather than clause 4(1)(e). Clause 4 relevantly provides:

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

(a) ...

(c) to endanger the life or physical safety of any person, or

(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or

...

(2) A document is not an exempt document by virtue of subclause (1):

(a) if it merely consists of:

(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or

(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or

(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or

(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or

(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and

(b) if disclosure of the document would, on balance, be in the public interest.

(3) ...

11. Clause 4 is found in Part 1 of Schedule 4 which relates to restricted documents (see the definition of restricted document in s 4). Section 57 makes specific provisions with respect to the consideration of restricted documents. It provides:

(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate.

(2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of:

(a) the public, and

(b) the review applicant, and

(c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative.

(3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it.

(4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application.

(5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter.

(6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings. I

12. There is no Ministerial certificate to which ss (1) applies. The Tribunal is therefore free to consider the grounds on which the claim of exemption is made.
13. The Tribunal's role when carrying that task was clarified by the Appeal Panel in IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79. In such circumstances s 57 requires that the Tribunal determine whether it is satisfied that there are 'reasonable grounds for the claim' of exemption. If so satisfied, the Tribunal's inquiry is to go no further. If not so satisfied, after considering the document, the Tribunal is to reject the claim. As the Appeal Panel pointed out in IPART (at [42]) this procedure does 'not permit the Tribunal to engage in full merits review.' As a result there is 'no scope' for the Tribunal to exercise its residual discretion with respect to such reviews: IPART at [46].
14. The Appeal Panel in IPART followed the decision of the High Court in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423. There the High Court considered the role of the Commonwealth AAT when reviewing a Ministerial Certificate to the effect that disclosure would be against the public interest. Section 58(5) under the Freedom of Information Act 1982 (C'th) provided that the Tribunal was to determine 'whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.' Hayne J, said, at [55]:

"...Its task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to the public interest?"

15. At [63] he said:

"In deciding whether reasonable grounds exist for a claim, the Tribunal must take account of any relevant evidence that has been adduced and of any relevant arguments that have been advanced. It must consider the particular claim that has been made and that will require consideration (and commonly the examination) of the particular documents that are in question."

16. Heydon and Callinan JJ agreed. At [131] they said:

"... It does follow, as the majority in the Full Court effectively held, that if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review. It is important to notice that the statutory language does not give an entitlement to access if there are, as often there may very well be, reasonable grounds for the revelation of the document in the public interest. It further follows that the Tribunal is not obliged to undertake a balancing exercise of the kind the appellant submits it was bound to do. The role of the Tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review of the kind contemplated by s 43(1) of the AAT Act. Whether therefore, the only practical and real means of attacking a conclusive certificate will be by demonstrating that there are no reasonable grounds in fact, or that the grounds relied on are so unreasonable that no reasonable person could hold the opinions upon which they are based, does not arise for decision in this appeal."

17. In the context of s 57, the fact that s 61 expressly stipulates that the burden of establishing that the determination is justified lies on the agency, means that the agency bears the burden of showing that there is a reasonable ground for the exemption claimed.
18. In Attorney-General's Department & Anor v Cockcroft (1986) 10 FCR 180 at 190 (Bowen CJ and Beaumont J), the Full Court held that the words "could reasonably be expected to" require:

"... a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous".

19. In Dunstan v Commissioner, Department of Corrective Services [2004] NSWADT 177 at [20] the President said the focus of the Tribunal's inquiry should be -

"... upon the character of the documents in the circumstances of the case, to determine whether there is a 'realistic and material possibility of the harm contemplated by the section occurring.'"

20. In Centrelink v Dykstra [2002] FCA 1442 at [25] Mansfield J noted that it is not the personal or subjective belief of particular individuals which is determinative, and continued:

"... The Tribunal had to determine whether the documents had the character that their release would, or could reasonably be expected to, endanger the life or physical safety of any person. I do not discern from the Tribunal's reasons that it misdirected itself in considering that question. It set out to judge objectively whether there was a possibility that the disclosure of the documents could endanger the life or physical safety of other persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous.

Consideration

21. In this case the Agency must establish that there are reasonable grounds for the claim that the disclosure of the information could reasonably be expected to endanger the life or physical safety of any person. The persons whose life or physical safety the Agency says would be imperilled are not identified by the Agency.
22. The Agency points to the fact that the information relates to warrants issued under the Listening Devices Act 1984. This has since been repealed and replaced by the Surveillance Devices Act 2007. The Agency points out that had the warrants in question been obtained under the Surveillance Devices Act 2007, then the information Mr Lambell seeks would be protected information within the meaning of s 39(b)(i) of that Act, and protected from disclosure. The Agency argues that the fact that Mr Lambell would not be able to obtain the information he seeks if the warrants were issued under the Surveillance Devices Act 2007 is a "relevant circumstance indicating that the respondent has "reasonable ground" for finding the clause 4(1)(c) exemption applies.
23. I do not accept this submission for a number of reasons. First, the transitional provision in Schedule 1 of the Surveillance Devices Act 2007 make it clear that the restrictions on the use, communication and publication of protected information in that Act do not apply "to information obtained, or a record made, by the use before the commencement of this clause of a listening device under a warrant or authority issued under the repealed Act." Secondly, I am unable to see how the provisions of the Surveillance Devices Act 2007 indicate that disclosure of the dates of applications for warrants could give rise to reasonable ground to claim that disclosure could reasonably be expected to endanger the life or physical safety of any person. Aside from asserting that this is the case, the Agency's evidence and submissions does not disclose any rational basis for such a conclusion.
24. The principal factors upon which the Agency relies to demonstrate a reasonable ground that disclosure could reasonably be expected to endanger the life or physical safety of any person are Mr Lambell's convictions for solicit to murder and the findings of his Honour Judge Graham on sentencing. I have extracted some of those comments above. They point to Mr Lambell having planned and solicited the slow and painful execution of two men, by cruel and vindictive means, and to him having been an active participant in the preparations for the scheme. They point to him carrying a significant grudge, and to His Honour being less than fully satisfied by Mr Lambell's protests of contrition and regret.
25. In submissions the Agency pointed to a series of decisions made under clause 4(1)(e), or its interstate equivalents, where the criminal record of an applicant was a significant factor in access being refused to information sought. Thus in O'Sullivan v Victoria Police [2005] VCAT 532 Morris J refused access to information sought from the Police intelligence data base relating to Mr O'Sullivan, which would enable him to identify when and by whom Police records relating to him had been accessed. He had a substantial criminal record and had threatened to track down police who harassed him. Morris J said at [20] -

"20. Thus, even if contrary to my finding Mr O'Sullivan was only intending to tease and was not intending to intimidate, his actions have had the effect of intimidating; and that effect leads me to find that the disclosure of the names of the police officers who have accessed the LEAP database would endanger the physical safety of those persons because it would make them feel less safe."

26. In Dezfouli v Department of Corrective Services [2007] NSWADT 25 Judicial Member Pearson refused access, to a forensic patient detained under the Mental Health Act 2007, to an internal document which disclosed person who were to be alerted were their to be a significant change in his status, on the basis that the disclosure of the information could reasonably be expected to endanger their physical safety.
27. In contrast, in Richards v Clarence Valley Council [2009] NSWADT 243 I found that there were no reasonable grounds for finding that disclosure of a DVD could reasonably be expected to endanger the physical safety of persons, because the information which would be disclosed was already known to the applicant, and he did not have a serious or concerning criminal history.
28. In two cases where there was found to be reasonable grounds for the exemption claimed there was evidence that the applicant had a substantial record, and that the disclosure of the information sought would enable the identification of persons whose physical safety could reasonably be expected to be endangered.
29. In Mr Lambell's case there is ample evidence that Mr Lambell has a criminal history which is concerning. There, is however, no evidence or submission which demonstrates how the disclosure of the dates of the applications to the Supreme Court for listening devices warrants could be reasonably expected to endanger the safety of any person. I am unable to see how the release of information relating to those dates alone could do so. There is no evidence that the disclosure of the dates would endanger any person. The Agency's submissions do not advance a chain of reasoning that might lead to such a conclusion. I cannot see a reasonable and rational link between disclosure of the dates only, and the view that such a disclosure would give rise to reasonable grounds for a claim that there is a reasonable expectation that the physical safety of any person my be endangered by such disclosure.
30. As Mr Lambell submitted, the events in issue took place more than six years ago. While he clearly believes that the recording made under the Listening Devices Act 1984 were tainted by illegality, the reality is that the Trial judge determined to admit them in evidence. Mr Lambell then pleaded guilty. Mr Lambell says he is the victim of "an orchestrated campaign for his removal from society" and that the disclosure of the information will assist his research. In his submissions Mr Lambell also relied on various provisions of the Government Information (Public Access) Act 2009. They are not relevant to the issues to be determined by me, to which the Freedom of Information Act 1989 continues to apply. There is nothing in his submissions which points to there being reasonable grounds for a claim that disclosure of the dates will give rise to a reasonable expectation that the physical safety of any person may be endangered.

Conclusion

31. It follows that I am not satisfied on the evidence that there are reasonable grounds for the exemption claimed.
32. As a consequence, in accordance with s 57(3) I require the Agency to produce to the Tribunal, on a confidential basis, documents responsive to Mr Lambell's request. As Mr Lambell is only seeking information as to the dates of the applications I would expect the documents so produced to be significantly redacted, but to nonetheless contain sufficient information to identify the applications and their dates.
33. I will direct that this matter be listed for a further planning meeting on Friday 8 April 2011 at 10.00am, after the documents have been produced.
34. In order to ensure compliance with s 57(5) I direct that a copy of all the materials filed in this proceeding, together with a copy of these reasons and a notice of hearing for the next planning meeting, be served by the Agency on the Minister responsible for administering the Freedom of Information Act 1989. This will ensure that the Minister has an opportunity to appear and be heard in relation to the matter.

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