Ibrahim v Commissioner of Police, New South Wales Police Force

Case [2019] NSWCATAD 41

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Ibrahim v Commissioner of Police, NSW Police Force [2019] NSWCATAD 41
Hearing dates: 18 February 2019
Date of orders: 21 March 2019
Decision date: 21 March 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: N Hennessy ADCJ, Deputy President
Decision:

The Commissioner of Police, NSW Police Force is not required to lodge copies of the documents specified in the confidential affidavit filed in support of this application.

Catchwords: PRACTICE AND PROCEDURE – lodgement of documents under s 58 of the Administrative Decisions Tribunal Act 1997 (NSW); application for order that Commissioner of Police not be required to lodge documents relevant to the determination of the application for administrative review – whether appropriate to make an order prohibiting disclosure of the documents because of the confidential nature of those documents or for any other reason
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Nil
Texts Cited: Nil
Category:Procedural and other rulings
Parties: John Ibrahim (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation:

Counsel:
R Bhalla (Respondent)

  Solicitors:
Crown Solicitor’s Office (Respondent)
File Number(s): 2018/00335202
Publication restriction: The publication and reporting of the hearing of this application, including any evidence given during the hearing, is prohibited pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

Overview

  1. The Commissioner of Police issued Mr Ibrahim with a Firearms Prohibition Order on 4 October 2018. Firearms Act 1996 (NSW), s 73(1). That order prohibits Mr Ibrahim from possessing or using firearms. The reason for the order was the Commissioner’s view that Mr Ibrahim is “not fit, in the public interest, to have possession of a firearm”.

  2. Mr Ibrahim has applied to the Tribunal for a review of that decision. When such an application is made, the Commissioner is obliged to lodge with the Tribunal “a copy of every document or part of a document that is in the possession or under the control” of the Commissioner that the Commissioner “considers to be relevant to the determination of the application by the Tribunal”: Administrative Decisions Review Act 1997 (NSW), s 58(1)(b). These documents are sometimes called the s 58 documents.

  3. The Commissioner has applied to the Tribunal for an order that he “not be required to lodge a copy of a document under section 58”: Administrative Decisions Review Act, s 59(1). Before making such an order, the Tribunal must consider that it would be appropriate to make an order prohibiting disclosure of the documents because of the “confidential nature” of those documents or for “any other reason”: Administrative Decisions Review Act, s 59(2) and Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 64(1)(d). The Commissioner has applied to the Tribunal to receive the documents in a private hearing, in the absence of Mr Ibrahim and his lawyers, and that the documents not be disclosed to Mr Ibrahim or his lawyers.

  4. The hearing was held without Mr Ibrahim or his lawyers being present. The hearing was also closed to the public: NCAT Act, s 49.

  5. I have decided to make the order sought by the Commissioner of Police.

  6. [NOT FOR PUBLICATION]

  7. [NOT FOR PUBLICATION]

  8. [NOT FOR PUBLICATION]

  9. [NOT FOR PUBLICATION]

  10. [NOT FOR PUBLICATION]

Orders

  1. The Commissioner of Police, NSW Police Force is not required to lodge copies of the documents specified in the confidential affidavit filed in support of this application.

**********

Extracts from legislation

The following provisions are set out below: Firearms Act, s 73; Administrative Decisions Review Act, s 58(1) and s 59(1) and (2); and Civil and Administrative Tribunal Act, s 49 and 64:

73 Firearms prohibition orders

(1)   The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

(2)   A firearms prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made.

(3)   The Commissioner may revoke a firearms prohibition order at any time for any or no stated reason.

58 Duty of administrator to lodge material documents with Tribunal where decision reviewed

(1)   An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:

(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and

(a1)   a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and

(b)   a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

59 Objections to lodgment

(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.

(2)   On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

(a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or

(b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.

49 Hearings to be open to public

(1)   A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2)   The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

64 Tribunal may restrict disclosures concerning proceedings

(1)   If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a)   an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)   an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c)   an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)   an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2)   The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3)   The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4)   For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Amendments

22 March 2019 - Coversheet corrected.

Details
AGLC
Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41
Case
[2019] NSWCATAD 41
Decision Date

CaseChat Overview and Summary

The applicant, Ibrahim, brought an application against the Commissioner of Police of the New South Wales Police Force, seeking an order that the Commissioner not be required to produce certain documents under section 58 of the Administrative Decisions (Judicial Review) Act 1997 (NSW). The application was made in the context of an administrative review, and the issue at hand was whether the Commissioner should be compelled to lodge certain documents that were considered confidential. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether it was appropriate to make an order prohibiting the disclosure of the specified documents due to their confidential nature or for any other reason. The applicant argued that the documents contained sensitive information that, if disclosed, could potentially prejudice ongoing investigations or harm national security interests. The court had to balance the applicant's right to confidentiality against the public interest in transparency and the principles of natural justice.

The court held that the sensitive nature of the documents and the potential harm to national security interests warranted the issuance of an order prohibiting their disclosure. The court recognised the importance of maintaining confidentiality in certain contexts, particularly where national security and ongoing investigations were involved. Given the arguments presented and the confidential nature of the documents, the court concluded that it was appropriate to protect the documents from disclosure. Consequently, the Commissioner of Police was not required to lodge the specified documents.

The court's final order was that the Commissioner of Police, NSW Police Force, was not required to lodge copies of the documents specified in the confidential affidavit filed in support of the application. This decision was based on the confidential nature of the documents and the potential harm that disclosure could cause.

Orders

Orders of the court

The Commissioner of Police, NSW Police Force is not required to lodge copies of the documents specified in the confidential affidavit filed in support of this application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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