McAdam v Commissioner of Police
[2022] NSWCATAD 191
•14 June 2022
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: McAdam v Commissioner of Police [2022] NSWCATAD 191 Hearing dates: On the papers Date of orders: 14 June 2022 Decision date: 14 June 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: Andelman L, Senior Member Decision: 1. Pursuant to s50 of the Civil and Administrative Tribunal Act 2013, the Tribunal dispenses with a hearing.
2. The Respondent’s application to rely on confidential material in a closed hearing is dismissed.
Catchwords: LICENSING – firearm licence – confidential material application
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996Cases Cited: Brennan v State of New South Wales [2006] NSWSC 167
State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Category: Procedural rulings Parties: Kirby James McAdam (Applicant)
Commissioner of Police NSW (Respondent)Representation: Solicitor:
Hartmann & Associates (Applicant)
Respondent (Self-represented)
File Number(s): 2022/00075471 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent Commissioner of Police.
REASONS FOR DECISION
Background
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The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing. I am satisfied that the matter can be adequately determined in the absence of the parties. The Tribunal dispenses with a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act).
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On 16 March 2022, Mr McAdam made an application for a review of an internal review decision made by the Commissioner of Police (Commissioner) revoking his Category AB firearm licence. In revoking the licence, the Commissioner relied on the following matters:
Primary consideration in granting the licence is public interest as set out in s3(1) of the Firearm Act 1996;
Available information demonstrating a close association with person who is prohibited from accessing firearms and who has an extensive criminal history;
That on two previous occasions applications lodged with the Tribunal by Mr McAdam related to firearm licencing were found in the Commissioner’s favour; and
That on 9 October 2021 a Traffic Infringement Notice was issued.
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The Commissioner found that Mr McAdam was not a fit and proper person and that it would be contrary to the public interest to issue the licence pursuant to ss11(3)(a) and 11(7) of the Firearm Act 1996.
Application by the Commissioner
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On 25 May 2022, the Commissioner made an application to the Tribunal that some of the material it seeks to rely on be confidential pursuant to s64(1)(c) and (d) of the CAT Act and s49(2) of the Administrative Decisions Review Act 1997 (ADR Act).
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The Commissioner relied on a statement of Ms Chantyl Szostak dated 25 May 2022 and written submissions dated 25 May 2022. Documents were also filed pursuant to s58 of the ADR Act.
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Mr McAdam has not filed any documents or submissions in response to the Commissioner’s application.
Relevant Law
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Section 58 of the ADR Act obliges the administrator to file, amongst other things, a copy of every document that is in the possession or under its control, that it considers relevant to the determination of the application by the Tribunal. Section 59 of the ADR Act, however, gives the Tribunal the power to direct that an administrator, in this case, the Commissioner, not be required to lodge certain documents as would otherwise be required by s 58 of the ADR Act:
59 Objections to lodgement
(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) ... 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.
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The Commissioner sought Orders under ss 49(2) and 64(1) of the CAT Act. Section 49 provides for the holding of confidential hearings:
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.
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Section 64 of the CAT Act sets out the circumstances in which the Tribunal may restrict disclosures concerning proceedings:
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.
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In determining whether the Commissioner should be permitted to rely on confidential materials at the final hearing requires an examination of ss 58 and 59 of the ADR Act and ss 49(2) and 64 of the CAT Act. These provisions make clear that the starting point is that the Tribunal’s hearings are open to the public: See State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61].
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Section 49(1) CAT Act applies the principle of open justice and the rules of procedural fairness. However, the provisions provide an express exception to the usual rule that all evidence filed by one party is provided to the other party and the hearing is public. The Tribunal may make an order that evidence be withheld from a party and the hearing is conducted in the absence of a party if the Tribunal is satisfied this it is ‘desirable’; ss 49(2) and 64(1) of the CAT Act.
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Section 49(2) of the CAT Act gives the Tribunal discretion to order that a hearing is conducted 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.
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In considering whether it is ‘desirable’ to restrict disclosure concerning proceedings, where material is confidential and it exposes information about ongoing or future police investigations, identifies informants or discloses police methodology there is public interest in non-disclosure of confidential information. Brennan v State of New South Wales [2006] NSWSC 167 at [51]-[52].
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The resultant unfairness caused to the applicant arising from him or her being unable to know or respond to information relied on by the Commissioner and considered by the Tribunal is not a reason to not make a confidentiality order as there are explicit provisions for such an outcome in the CAT Act and ADR Act.
The Open Evidence
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Ms Szostak is a Senior Constable, she deposes that the confidential material would or could alert Mr McAdam to information that the NSW Police Force has gathered about him and consequently jeopardises future investigations and inquiries and exposes the police methodology and intelligence gathering methodology.
Confidential Material
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[NOT FOR PUBLICATION]
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[NOT FOR PUBLICATION]
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[NOT FOR PUBLICATION]
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[NOT FOR PUBLICATION]
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[NOT FOR PUBLICATION]
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The Tribunal is not satisfied that the confidential material jeopardises future investigations and inquiries and exposes the police methodology and intelligence gathering methodology.
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It is not desirable for the Tribunal to make an order that the evidence subject to this application be withheld from Mr McAdam because there is insufficient public interest in the non-disclosure.
Orders
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The Tribunal makes the following Orders:
Pursuant to s50 of the Civil and Administrative Tribunal Act 2013, the Tribunal dispenses with a hearing.
The Respondent’s application to rely on confidential material in a closed hearing is dismissed.
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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
Decision last updated: 14 June 2022
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