Pendrick v Commissioner of Police, NSW Police Force
[2021] NSWCATAD 326
•05 November 2021
Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 Hearing dates: On the papers Date of orders: 05 November 2021 Decision date: 05 November 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: 1. A hearing of the respondent’s applications for orders under s 59 of the Administrative Decisions Review Act 1997 and ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 is dispensed with.
1A. Pursuant to s 59 of the Administrative Decisions Review Act 1997 (NSW), copies of the documents comprising the Confidential Material (which were the subject of the respondent’s application dated 18 August 2021), are not required to be lodged with the Tribunal.
2. Disclosure of the confidential affidavit, filed by the respondent on 27 September 2021, and of matters contained in that affidavit, to the applicant in proceeding 2021/168642 and to the applicant in proceeding 2021/168663 is prohibited.
3. Publication of the confidential affidavit, filed by the respondent on 27 September 2021, and of matters contained in that affidavit, is prohibited.
4. Disclosure of the confidential material which was the subject of the respondent’s application made on 18 August 2021, and of matters contained in that material, to the applicant in proceeding 2021/168642 and to the applicant in proceeding 2021/168663 is prohibited, pending further order.
5. Publication of the confidential material which was the subject of the respondent’s application made on 18 August 2021, and of matters contained in that material, is prohibited, pending further order.
6. The respondent’s application made on 18 August 2021 is otherwise dismissed.
Catchwords: ADMINISTRATIVE LAW – Where respondent applied for order under s 59 of the Administrative Decisions Review Act 1997 that he not be required to lodge a confidential document - Where respondent also applied for non-publication and non-disclosure orders – Whether order under s 59 should be made – Whether non-publication and non-disclosure orders should be made in relation to documents, prior to those documents being tendered in evidence
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Bettington v Commissioner of Police [2021] NSWCATAP 110
Grant v Commissioner of Police [2020] NSWCATAD 158
Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAD 227
State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Category: Procedural rulings Parties: Ronald Pendrick (First Applicant)
April Pendrick (Second Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: Solicitors:
Hartmann & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2021/168642; 2021/168663 Publication restriction: See orders 2 to 5 above.
REASONS FOR DECISION
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The applicants seek administrative review of decisions of the Commissioner of Police (“the Commissioner”) to refuse to grant each of them a firearms licence.
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The Commissioner has applied, under s 59 of the Administrative Decisions Review Act 1997 (NSW), for an order relieving the Commissioner of the obligation to lodge certain documents with the Tribunal (“the s 59 application”). The Commissioner has also applied for various non-publication and non-disclosure orders, including an order prohibiting disclosure of certain material to the applicants. This decision relates to those applications.
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I have granted the Commissioner’s application under s 59 of the Administrative Decisions Review Act, on the bases that some of the documents would be subject to public interest immunity and that it would be appropriate to make a non-publication order in respect of the remainder of the documents, if they were to be adduced in evidence.
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I have made some non-publication and non-disclosure orders, but only on a limited basis. I have left to the hearing the question of whether to admit the material the subject of the Commissioner’s application into evidence and, if so, whether to make the orders sought in relation to that material. The making of an order prohibiting a party from having access to material which is admitted into evidence involves a denial of procedural fairness. It is generally appropriate to determine whether to make such orders at a hearing, when the material is tendered.
Background
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On about 11 March 2021, Mr Pendrick applied for a Category AB firearms licence. On the same day, Ms Pendrick applied for a Category AB firearms licence.
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On 24 March 2021, a delegate of the Commissioner wrote to Mr Pendrick, advising him that his application for a firearms licence had been refused. The Commissioner’s delegate wrote to Ms Pendrick on the same day, advising her that her application had been refused. Each letter stated:
“Information maintained by the NSW Police Force reveals extensive adverse holdings relating to family members. These holdings raise significant concerns regarding public safety should you be issued a firearms licence.
Accordingly, based on the above information, I am satisfied it would not be in the public interest for you to be authorised to possess and use firearms due to your domestic circumstances. Therefore, I have determined to refuse your application for a firearms licence.”
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In both cases, the Commissioner relied upon s 11(4)(a) and (7) of the Firearms Act 1996 (NSW) in support of his refusal decision. Section 11(7) provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. Section 11(4)(a) provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances.
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Mr Pendrick and Ms Pendrick both applied for internal review of the decision to refuse their licence applications on 20 April 2021. The Commissioner did not respond within 21 days, such that Mr Pendrick and Ms Pendrick each became entitled to apply to the Tribunal for a review of the decision (Administrative Decisions Review Act , ss 53(6) and (9) and 55(3)).
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On 11 June 2021, Mr Pendrick applied to the Tribunal for a review of the Commissioner’s decision to refuse his application for a firearms licence (proceedings 2021/168663). Ms Pendrick applied to the Tribunal on the same day for a review of the decision to refuse her application (proceedings 2021/168642).
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On 27 July 2021, the Tribunal made directions in both proceedings that any application for orders under s 59 of the Administrative Decisions Review Act be made by 10 August 2021.
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On 17 August 2021, the Tribunal made directions in both proceedings. These included orders for the Commissioner to file any application for confidentiality orders by 20 August 2021 and for both parties to provide evidence and submissions in relation to that application.
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On 18 August 2021, the Commissioner filed an application seeking the following orders:
Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) the hearing of the application be conducted in the absence of the applicant in the substantive proceedings, any legal representative for the applicant in the substantive proceedings, and the public;
Pursuant to s 59 of the Administrative Decisions Review Act, the Commissioner not be required to lodge copies of the documents or parts of documents (“the Confidential Material”) specified in the confidential affidavit in support of the application and provided to the Tribunal in accordance with the orders of the Tribunal (“the Confidential Affidavit”);
Pursuant to s 64(1)(c) of the NCAT Act, the publication of the Confidential Material and the Confidential Affidavit, or matters contained in the Confidential Material and the Confidential Affidavit, is prohibited;
Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Material and the Confidential Affidavit, or matters contained in the Confidential Material and the Confidential Affidavit, is restricted to the Commissioner, the legal representatives for the Commissioner, and the Tribunal;
Pursuant to s 64(1)(b) and (c) of the NCAT Act, the publication and reporting of the hearing of this application, including any evidence given during the hearing, is prohibited.
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On about 24 September 2021, the Commissioner filed an open Statement of Sergeant Nigel Turney, open submissions in support of the Commissioner’s applications for orders under s 59 of the Administrative Decisions Review Act and s 64 of the NCAT Act, confidential evidence and the material in relation to which the orders are sought.
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On 27 September 2021, time for compliance with the orders for the filing of evidence and submissions in respect of the confidentiality orders was extended to 28 September 2021 (for the Commissioner) and 8 October 2021 (for the applicants).
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On 8 October 2021, the applicants filed some evidence. The applicants did not directly respond to the Commissioner’s application.
Determination of the matter on the papers
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The parties consented to the Commissioner’s application being determined on the papers at a directions hearing on 17 August 2021.
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I am satisfied that the issues for determination in that application can be adequately determined in the absence of the parties by considering the written submissions and other documents or material provided to the Tribunal (NCAT Act, s 50(2)). Accordingly, I have decided to dispense with a hearing of the application.
Extension of time
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A person is entitled to apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of a decision to refuse to issue a firearms licence (Firearms Act, s 75(1)(a)).
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An application to the Tribunal is to be made in the time and manner prescribed by the procedural rules (Administrative Decisions Review Act, s 55(2)). Unless the Tribunal grants an extension under s 41 of the NCAT Act, an application must be made by the end of the “default application period” Civil and Administrative Tribunal Rules 2014 (NSW) (“NCAT Rules”), r 24(3)(b)). The “default application period” is defined to mean, relevantly, the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of the Administrative Decisions Review Act (NCAT Rules, r 24(4)(a)).
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The internal review was taken to have been finalised on 11 May 2021, being 21 days after the internal review application was made. The period of 28 days referred to in r 24(4)(a) of the NCAT Rules expired on 8 June 2021, three days before the applicants applied to the Tribunal.
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That means that the applicants need an extension of time under s 41 of the NCAT Act to make their application to the Tribunal.
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The applicants checked the box on their application forms next to the statement: “The application is lodged within the time allowed under the relevant legislation.” They have not applied for an extension of time. An application for an extension of time made under s 41 of the NCAT Act must be made in writing unless the Tribunal dispenses with that requirement (NCAT Rules, r 8).
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The Commissioner has not raised the need for an extension of time. However, the Tribunal does not have jurisdiction to hear and determine the application unless it grants an extension of time.
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The parties have not consented to any application for an extension of time being determined on the papers (and no such application has been made). Accordingly, the issue of whether to extend time, if an application is made to do so, will need to be determined at the hearing of the substantive application.
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Even though no extension of time has yet been granted, I consider that I have jurisdiction to make the orders sought by the Commissioner, pending the determination of that jurisdictional issue.
Section 59 application
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Sections 58 and 59 of the Administrative Decisions Review Act relevantly provide as follows:
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.
…
(7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following:
(a) an order made under section 59 (Objections to lodgment),
(b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013,
(c) section 66 (Effect of Government Information (Public Access) Act 2009) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act).
…
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.
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Section 58(1)(b) of the Administrative Decisions Review Act requires an administrator to lodge documents with the Tribunal which the administrator considers to be relevant to the determination of the application for review by the Tribunal. Section 59(1) allows an administrator (such as the Commissioner) to apply for an order relieving the administrator of the administrator’s obligation under s 58(1)(b) in relation to specified documents.
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The Commissioner did not apply for an order that he not be required to lodge a copy of a document under s 58 of the Administrative Decisions Review Act “before the period referred to in section 58(1).” However, the Tribunal directed, on 27 July 2021, that any application for s 59 orders be made by 10 August 2021 and on 17 August 2021 directed that any application for information not included in the s 58 documents be made by 3 September 2021. On one view, those orders were made pursuant to s 41(1) of the NCAT Act and had the effect of extending the time for the making of the s 59 application. In the absence of any submissions to the contrary, I will assume that that was the case.
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The effect of an order under s 59 of the Administrative Decisions Review Act is that the administrator is not required to lodge the document or documents the subject of the order with the Tribunal at all. As I remarked in Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAD 227 at [32], the effect of an order under s 59 is similar to that of an order which a court might make following a successful public immunity claim. It is that a party is relieved of its obligation to produce a document. It does not follow from the making of an order under s 59 that the administrator will be permitted to rely upon the documents the subject of that order in evidence, without the applicant having access to them. The questions of whether to admit the material into evidence, and whether to make orders under s 64(1)(d) of the NCAT Act prohibiting the disclosure of that material to a party, raise very different issues.
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Sergeant Turney described the material the subject of the application under s 59 of the Administrative Decisions Review Act (the “Confidential Material”) in his open statement in the following way:
“The Confidential Material is confidential and sensitive and only accessible by law enforcement personnel.
The information in the Confidential Material has been collated and maintained by the NSWPF to assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct.”
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I accept that evidence.
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Sergeant Turney has stated, in his open statement, that disclosure of the Confidential Material would or could:
Prejudice future investigations into criminal activity;
Expose police methodology;
Reveal confidential methods of investigation;
Identify confidential sources of information to law enforcement; and/or
Place identified persons at risk of harm.
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Having reviewed the Confidential Material, I accept Sergeant Turney’s opinion as to the effect of disclosure of the Confidential Material.
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The Tribunal may make an order that a copy of a document not be lodged with the Tribunal if it is satisfied that s 67 of the NCAT Act operates so as not to require the disclosure of the document (Administrative Decisions Review Act, s 59(2)(a)). Section 67(1) of the NCAT Act relevantly provides that nothing in that Act requires the disclosure of a document if the Tribunal is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of Part 3.10 of the Evidence Act 1995 (NSW). Section 130, in Part 3.10 of the Evidence Act, is headed “Exclusion of evidence of matters of state” and provides for a statutory equivalent of public interest immunity. The Commissioner has submitted that “[t]he sensitive and confidential nature of the information in the Confidential Material would lead the Commissioner to make a claim of public interest immunity over those documents.”
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I am satisfied that s 67 of the NCAT Act operates so as not to require disclosure of part of the Confidential Material, being material to which s 130 of the Evidence Act would apply. That material is [Not for Publication]. The public interest in admitting into evidence that material, that relates to matters of state, is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document (Evidence Act, s 130(1)). It is appropriate to make an order under s 59 of the Administrative Decisions Review Act that a copy of the documents comprising that material not be lodged with the Tribunal.
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The Tribunal may also make an order that a copy of a document not be lodged with the Tribunal if it considers that, if an application were made under s 64 of the NCAT Act, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document (Administrative Decisions Review Act, s 59(2)(b)). In respect of the remainder of the Confidential Material, I consider that, if it were to be adduced in evidence, it would be appropriate to make an order under s 64(1)(c) of the NCAT Act, prohibiting or restricting the publication of that material. In those circumstances, it would be desirable to make a non-publication order, by reason of the confidential nature of the material (see NCAT Act, s 64(1)).
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Accordingly, I consider that it is appropriate to make an order under s 59 of the Administrative Decisions Review Act that a copy of the documents comprising the Confidential Material, not be lodged with the Tribunal.
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The documents comprising the Confidential Material have, in fact been lodged with the Tribunal, for the purposes of the Commissioner’s applications for orders under s 59 of the Administrative Decisions Review Act and s 64 of the NCAT Act. Unless the Commissioner relies on those documents in evidence, it would be appropriate for those documents to be returned to the Commissioner.
Application for non-publication and non-disclosure orders
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The Commissioner has applied for various orders under ss 49 and 64 of the NCAT Act, as set out above.
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The Commissioner seeks an order under s 49 of the NCAT Act that the hearing of the Commissioner’s application be conducted in the absence of the applicants, their legal representative and the public. The Commissioner also seeks orders, under s 64(1)(b) and (c) of the NCAT Act, that the publication and reporting of the hearing of this application, including any evidence given during the hearing, is prohibited. As I have determined to dispense with a hearing of the application, those orders are unnecessary and I decline to make them.
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The Commissioner has applied for an order, pursuant to s 64(1)(c) of the NCAT Act, that the publication of the Confidential Material and the Confidential Affidavit, or of matters contained in the Confidential Material and the Confidential Affidavit, is prohibited.
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The Commissioner has also applied for an order, under s 64(1)(d) of the NCAT Act, that the disclosure of the Confidential Material and the Confidential Affidavit, or of matters contained in the Confidential Material and the Confidential Affidavit, is restricted to the Commissioner, the legal representatives for the Commissioner, and the Tribunal.
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Subsections 64(1)(c) and (d) of the NCAT Act apply to “evidence given before the Tribunal,” and “matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal.” The Tribunal has not yet decided what to receive in evidence in the substantive application.
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The Confidential Material (or matters therein) is probably captured by the expression “matters contained in documents lodged with the Tribunal” in s 64(1)(c). The Confidential Material was itself lodged confidentially with the Tribunal for the purposes of determining the Commissioner’s applications (including the application under s 59 of the Administrative Decisions Review Act relieving the Commissioner from an obligation to lodge that material). It may best be characterised as having been lodged with the Tribunal on a provisional or temporary basis, for the purposes of the s 59 application.
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The Confidential Affidavit is evidence lodged in support of the Commissioner’s applications.
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It is desirable to make orders under s 64(1)(c) and (d) of the NCAT Act prohibiting the disclosure to the applicants and the publication of the Confidential Affidavit. That is desirable because the Confidential Affidavit was filed on a confidential basis in support of the s 59 order, in accordance with the Tribunal’s directions. If that affidavit were to be published or made available to the applicants, administrators would be deterred from making similar applications in future. It is desirable that administrators are not discouraged from making applications for non-disclosure, non-publication or non-production orders which they consider to be appropriate and that the supporting evidence remain confidential, irrespective of the outcome of the application.
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To the extent that the application seeks to prohibit the disclosure of evidence in the substantive application to the applicant and to the public, it is premature. The order sought under s 64(1)(d) of the NCAT Act, precluding the applicants from having access to the Confidential Material, may impact significantly on the Tribunal’s obligation to provide the applicants with procedural fairness (NCAT Act, s 38(2)). The Commissioner has submitted that any denial of procedural fairness that would arise from the making of orders under s 64(1) of the NCAT Act “is no reason to avoid making such orders,” because s 64(1)(d) “implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 at [24].” That is to misstate the position.
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It may be acknowledged that the making of an order under s 64(1)(d) of the NCAT Act would generally involve a denial of procedural fairness. For that reason, the Tribunal should carefully consider the requirements of procedural fairness, and the impact on an affected party of a denial of procedural fairness, when determining to make an order under that provision. Whether it is “desirable” to make an order under s 64(1) is to be determined with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], Grant v Commissioner of Police [2020] NSWCATAD 158 at [19]). Whilst the Tribunal has power to make an order under s 64(1)(d) of the NCAT Act which would have the effect of denying a party procedural fairness, “the fundamental principles of open justice and procedural fairness should not readily be displaced” (Bettington v Commissioner of Police [2021] NSWCATAP 110 at [41]).
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It is also appropriate to note that the Firearms Act contains provisions which expressly prohibit the disclosure of certain material to an applicant. As I observed in Grant v Commissioner of Police [2020] NSWCATAD 158 at [16]:
“There is express provision, in the Firearms Act, for evidence to be withheld from an applicant and from the public. Section 75(5)(a) of the Firearms Act provides that the Tribunal ‘is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11(5A) or 29(3A).’ Section 75(5)(b) provides that, ‘in order to prevent the disclosure of any such report or other information,’ the Tribunal ‘is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant’s representative.’”
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On one construction of s 75(5)(a) of the Firearms Act, the Tribunal is prohibited from disclosing a “criminal intelligence report or other criminal information held in relation to” a person, irrespective of whether the Commissioner has relied upon s 11(5A) of the Firearms Act to refuse to grant a licence and irrespective of whether the Commissioner relies upon that provision at a hearing. If the Tribunal is bound by s 75(5) of the Firearms Act in relation to particular information, it may be that an order under s 64 of the NCAT Act is not necessary in respect of that information. In any event, it would appear to be logical to consider the effect of s 75(5) of the Firearms Act before determining whether to make a discretionary order under s 64 of the NCAT Act.
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As indicated above, the question as to whether to extend time for the making of the applicants’ applications has not yet been determined.
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These considerations point to the desirability of determining at the hearing whether to admit the Confidential Material (or some of it) into evidence, if the applicants are granted an extension of time and if the Commissioner seeks to tender it as evidence. They also point to the desirability of considering, at the same time, whether to prohibit the disclosure of that material to the applicant. It may be appropriate, at the hearing, to have a confidential session under s 49 of the NCAT Act, at which the Commissioner’s representative may make submissions as to why the confidentiality orders should be made. It would also be appropriate to give both parties an opportunity, in an open hearing, to make submissions about the construction and application of s 75(5) of the Firearms Act and the admission into evidence of confidential material.
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In the interim, it is desirable to make orders under s 64(1)(c) and (d) of the NCAT Act prohibiting the publication and disclosure of the Confidential Material to the applicants, pending further order. That is because that material has been lodged with the Tribunal and is currently held by the Tribunal, and is confidential for the reasons given above. It may be appropriate to return some or all of that material to the Commissioner at the hearing, having regard to the outcome of his s 59 application. The question of whether it is desirable to make those orders on a final basis, in relation to any material which is admitted into evidence, should be determined at the hearing.
Orders
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I make the following orders:
(1A) Pursuant to s 59 of the Administrative Decisions Review Act 1997 (NSW), copies of the documents comprising the Confidential Material (which were the subject of the respondent’s application dated 18 August 2021), are not required to be lodged with the Tribunal.A hearing of the respondent’s applications for orders under s 59 of the Administrative Decisions Review Act 1997 and ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 is dispensed with.
Disclosure of the confidential affidavit, filed by the respondent on 27 September 2021, and of matters contained in that affidavit, to the applicant in proceeding 2021/168642 and to the applicant in proceeding 2021/168663 is prohibited.
Publication of the confidential affidavit, filed by the respondent on 27 September 2021, and of matters contained in that affidavit, is prohibited.
Disclosure of the confidential material which was the subject of the respondent’s application made on 18 August 2021, and of matters contained in that material, to the applicant in proceeding 2021/168642 and to the applicant in proceeding 2021/168663 is prohibited, pending further order.
Publication of the confidential material which was the subject of the respondent’s application made on 18 August 2021, and of matters contained in that material, is prohibited, pending further order.
The respondent’s application is otherwise 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
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
10 November 2021 - Insertion of Order 1A
Decision last updated: 10 November 2021
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