Dattilo v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-11-02|Before: Health J

(2) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, disclosure of the Confidential Statement dated 19 October 2021 and the Closed Submissions dated 19 October 2021, and of matters contained in that Statement or in those Submissions, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.

(3) Pursuant to s64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the interlocutory hearing of 2 November 2021 is prohibited.

(4) Pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013, publication of the Confidential Material (which was the subject of the Respondent's application heard on 2 November 2021), and of matters contained in that material, is prohibited pending further order.

(5) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, disclosure of Confidential Material (which was the subject of the Respondent's application heard on 2 November 2021), and of matters contained in that material, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal, pending further order

(6) Except pursuant to order (9), all paragraphs marked "[Not for publication]" are not to be published pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

The Applicant, Mr Giovanni Dattilo applied to this Tribunal on 3 August 2021 for a review of a decision by a delegate of the Commissioner of Police (the Commissioner) to refuse the Applicant's application for a category AB firearms licence pursuant to s75(1)(b) of the Firearms Act 1996 (the Act) and s9(1) of the Administrative Decisions Review Act 1997 (ADR Act).
The Commissioner has applied, under s 59 of the ADR Act for an order relieving the Commissioner of the obligation to lodge certain documents with the Tribunal (the s59 application). The Commissioner has also applied for various non-publication and non-disclosure orders, including an order prohibiting disclosure of certain material to the Applicant. This decision relates to those applications which, pursuant to an order dated 14 September 2021, was heard in the absence of the Applicant.
I have granted the Commissioner's application under s 59 of the ADR Act for the reasons below. I have confirmed some non-publication and non-disclosure orders which were made on an interim basis at the interlocutory hearing, but only on a limited basis. I have left to the substantive hearing the question of whether the material the subject of the Commissioner's application should be admitted into evidence and, if so, whether further confidentiality orders should be made 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

On 14 September 2021, the Commissioner was ordered to lodge with the Tribunal documents pursuant to s 58 of the ADR Act. Section 58(1) states: "(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.
Exceptions to s58 of the ADR Act are contained in s58(7). Notably, s58(7)(a) of the ADR Act provides that nothing in s58 requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of an order made under s59.
Section 59 of the ADR Act states: "(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."
Accordingly, s 59 of the ADR Act provides an exception to s 58 in that, the administrator is not required to lodge the documents that it would otherwise be required to lodge pursuant to s 58.
The Commissioner's application currently before the Tribunal is pursuant to s 59 of the ADR Act for an order relieving him of the obligation to lodge the following materials: 1. [Not for publication]; and 2. [Not for publication]
I will refer to the materials described in paragraph 8(1) above and the materials described in paragraph 8(2) above collectively as the "Confidential Material".
Additionally, the Commissioner made application for orders related to preserving the confidential nature of the Confidential Material pursuant to ss 49(2), 64(1)(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013 (CAT Act).

The evidence

In support of this application, the Commissioner relies upon Open Submissions and an Open Statement of Acting Senior Intelligence Analyst Deakin Yates both dated 19 October 2021. These documents have been served on the Applicant's solicitor.
The Commissioner also relies upon Confidential Submissions and a Confidential Statement of Mr Yates both dated 19 October 2021. These documents have not been served on the Applicant's solicitor.
The Applicant relies upon his written Submissions in Response dated 27 October 2021. The hearing on 2 November 2021 was held in private, pursuant to an order under s 49 of the CAT Act.
[Not for publication]
On 2 November 2021, interim orders were made protecting any confidentiality in the Confidential Materials, the Confidential Submissions and the Confidential Statement at the interlocutory hearing while the parties awaited these reasons for decision.

Legislation

The ordinary rule is that proceedings in the Tribunal are held in public, documents before the Tribunal are available to all parties and reasons for decision are published without restriction. However, certain legislative provisions provide exceptions to the ordinary rules including ss49 and 64 of the CAT Act and s 59 of the ADR Act.
Section 49(2) of the CAT Act authorises the holding of a private hearing.
As extracted above, s 59(2)(b) of the ADR Act provides that the Tribunal may make an order not requiring the Commissioner to lodge a copy of a document for the purposes of a s 58 bundle if it considers that, if an application were made under s 64 of the CAT Act, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
Section 64(1) of the CAT Act provides: "(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."

Submissions

In support of the Commissioner's application, the Commissioner relies on the evidence of Mr Yates.
Mr Yates provides an explanation of the COPS system which is an electronic database adopted by the NSW Police Force (the police) in 1994 as a record-keeping system to capture, record and store operational information and intelligence on an organisation-wide basis. COPS provides a means by which police officers record and enquire on the details of persons, organisations, locations, objects, property and vehicles that are of interest to police. When an officer enters information into COPS relating to an event, person, property, vehicle, object or organisation, the COPS system allocates a COPS event number to that entry.
COPS is made up of several sub-databases, including the Intelligence sub-database, which is used to create, update and enquire on all information that is specifically linked to an Information Report. The creation of an Information Report is the other avenue by which information is entered into COPS. An Information Report is the method by which information that is or could be of interest to police is recorded. This information can be derived from one or a number of different types of sources. It could be based on something that was observed or that was reported by a member of the public. When an officer enters information into COPS, the system allocates a unique number to that Information Report.
Once on the COPS database, the information on COPS is used to identify, assess and evaluate the law enforcement environment.
Mr Yates explains that the Confidential Material is only accessible by law enforcement personnel with clearance to access the material. The information in the Confidential Material has been collated and maintained by the police and other law enforcement agencies to assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct. It is necessary that such intelligence holdings remain confidential and not known to those who are subject to such intelligence holdings.
In the Commissioner's Open Submissions and with reference to Mr Yates' evidence, it is contended that there is a public interest in retaining that confidentiality as disclosure of the material would or could: 1. reveal a confidential source or confidential sources of information; 2. expose the confidential source or confidential sources to a risk of harm if it becomes known that they supplied information to police (from which information about the identity of those persons may be capable of being known); 3. expose police methodology; and/or 4. undermine the community policing model. This is a model that is said to encourage (and relies upon) the community to report criminal activity to police anonymously and in confidence. The Commissioner submits that if the community becomes aware that anonymous and confidential reports to police can be accessed or become known to respondents of those reports it can undermine confidence in reporting and inhibit police ability to detect and prevent crime as well as potentially expose confidential sources/ informants to harm.
Mr Yates, in his Open Statement, describes an additional risk being that disclosure of the Confidential Material would allow a picture to emerge showing what matters are known to the police about the activities of the persons of interest and from what inferences could be drawn as to what matters are therefore not known to the police. He states: "While it is possible that the Applicant or other persons may suspect or know some of the information held by the NSWPF, disclosure of the Confidential Material may confirm any such suspicions"
The Commissioner places reliance on Ainscough v Commissioner of Police, NSW Police Force [2021] NSWADT 47 at [17] as supporting that it is necessary that such intelligence remain confidential and not known to those who are subject to such holding.
The Applicant objects to the Commissioner relying upon any evidence (whether confidential or part of the Section 58 bundle) that is unrelated to the grounds relied upon by the Commission in his initial rejection of the Applicant's application. This ground, according to the Applicant, is the Applicant's mental health.
As contended by the Applicant, the objection is based upon an alleged estoppel and a denial of procedural fairness.
In support, the Applicant contends that the Commissioner would have had or been aware of the Confidential Material at the time of his decision and chose not to rely upon them. In these circumstances, it is contended on behalf of the Applicant that an estoppel arises that precludes the Commissioner from relying upon that information in these proceedings or in the alternate, a denial of natural justice.

Section 59 application

I am satisfied, based on evidence of Mr Yates and on my consideration of the Confidential Materials, that if the Confidential Materials were adduced in evidence, it would be appropriate to make an order under s 64(1)(c) of the CAT Act, prohibiting or restricting the publication of that material. I am satisfied that if the Confidential Materials were adduced into evidence and disclosed, the disclosure of the Confidential Material has the potential to: 1. prejudice the ability of the police to monitor and investigate criminal activity; 2. identify confidential sources of information; 3. place identified persons at risk; and 4. undermine the confidence of the public in providing information to the police on a confidential basis.
As such, if the Confidential Materials were adduced into evidence, their disclosure would be inconsistent with the public interest.
In coming to this conclusion and in my consideration of s64(1)(c) of the CAT Act for the purposes of an order under s 59 of the ADR Act, I am further satisfied that the circumstances justify such an order by reason of the potential for the disclosure of the Confidential Material to cause any one or more of the outcomes identified by Mr Yates. Those potential outcomes distinguish this case from the typical administrative review case that is brought to the Tribunal.
Accordingly, I consider that it is appropriate to make an order under s 59 of the ADR Act that a copy of the documents comprising the Confidential Material, not be lodged with the Tribunal.
The documents comprising the Confidential Material have, in fact been lodged with the Tribunal, for the purposes of the Commissioner's application for orders under s 59 of the ADR Act and s 64 of the CAT Act. Unless the Commissioner relies on those documents in evidence, it would be appropriate for those documents to be returned to the Commissioner.
While I have found that it is appropriate to make an order under s59 of the ADR Act in respect of the Confidential Material, such an order does not decide the issue of admissibility of those documents. as noted in the decision of Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 (Pendrick): "It does not follow from the making of an order under s 59 that the Commissioner 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 Civil and Administrative Act 2013 (NSW) (CAT Act) prohibiting the disclosure of that material to a party, raise very different issues."
In respect of deciding the issue of admissibility, the Respondent has foreshadowed his objection to the Confidential Material based upon estoppel and procedural fairness as described above. That issue will be heard at the time the parties seek to tender the evidence that they wish to rely upon including, but not limited to the Confidential Material if such tender is sought by the Commissioner. No decision as to the outcome of that foreshadowed objection has been made by virtue of this decision.

Application for non-publication and non-disclosure orders

The Commissioner has applied for various orders under ss 49 and 64 of the CAT Act.
The Commissioner seeks an order under s 49(2) of the CAT Act that the hearing of the Commissioner's application be conducted in the absence of the Applicant, the legal representative for the Applicant and the public. An order that the application be heard in the absence of the Applicant was made on 14 September 2021 which was confirmed at the hearing of the application and any further order in this regard with respect to the Applicant's absence is unnecessary. The orders made did not expressly refer to the legal representative for the Applicant nor the public but it is noted that the legal representative for the Applicant was absent from the interlocutory hearing of this application which was also conducted in the absence of the public. As such, those orders are unnecessary.
The Commissioner has applied for an order, that the publication of the Confidential Material and the Confidential Statement, or of the matters contained in the Confidential Material and the Confidential Statement, is prohibited pursuant to s 64(1)(c) of the CAT Act.
The Commissioner also applied for an order, under s 64(1)(d) of the NCAT Act, that the disclosure of the Confidential Material and the Confidential Statement, or of matters contained in the Confidential Material and the Confidential Statement, is restricted to the Commissioner, the legal representatives for the Commissioner, and the Tribunal.
Subsections 64(1)(c) and (d) of the CAT Act both apply to "evidence given before the Tribunal" and "matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal." The Confidential Statement is evidence given before the Tribunal in support of the Commissioner's application. Likewise, the Confidential Material falls within the meaning of "documents lodged with the Tribunal" as those materials were lodged for the purposes of this application. For the same reason, an order pursuant to s 64(1)(c) and (d) may also be made in respect of the Confidential Submissions given that this document was also lodged with the Tribunal for the purposes of the application.
It is desirable to makes orders under s 64(1)(c) and (d) of the CAT Act prohibiting the disclosure to the Applicant and the publication of the Confidential Affidavit and Confidential Submissions. It is desirable as these documents were filed on a confidential basis in support of the Commissioner's application for an order pursuant to s 59 of the ADR Act. This was done in accordance with the Tribunal's directions. To allow disclosure of such documents in those circumstances may deter administrators from making such applications in the future. Additionally, as the Confidential Affidavit and Confidential Submissions describe the Confidential Material, to allow disclosure would undermine any future order prohibiting the disclosure of the Confidential Material in the final hearing.
As such the orders prohibiting publication of Confidential Affidavit and Confidential Submissions pursuant to s64(1)(c) of the CAT Act which were made on 2 November 2021 should be confirmed. The orders prohibiting disclosure of the Confidential Affidavit and Confidential Submissions on an interim basis pursuant to s64(1)(d) of the CAT Act ought be set aside and new orders made removing the interim nature of those orders.
However, to the extent that the Commissioner's application seeks to prohibit disclosure in the final hearing to the Applicant and to the public - it is premature for the following reasons.
Firstly, while the Commissioner has indicated an intention to seek to tender the Confidential Material, that time has not yet come. It is inappropriate to pre-empt the forensic decisions that the Commissioner may make leading to the hearing and make orders, at this early stage, which may be to no purpose.
Secondly, the orders sought under s64 of the CAT Act, precluding the Applicant from having access to the Confidential Material may impact significantly on the Tribunal's obligation to provide the Applicant with procedural fairness and need to be considered in the circumstances then existing at the time of final hearing. It is uncontroversial that legislative exceptions to procedural safeguards ought only be applied in "extraordinary circumstances": Bellamy v Bellamy [2018] NSWSC 534 at [30] per Parker J. This is in deference to the rules of natural justice which prevent a party from being deprived an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal. It is for this reason why, for example, the word "desirable" in s64 should be interpreted with regard to the basic common law precept of open justice: Grant v Commissioner of Police [2020] NSWCATAD 158 at [18]-[20]. See also State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]-[82] which provides guidance as to the manner to identify these circumstances.
Thirdly, it is also appropriate to note that this proceeding is one for which the Tribunal derives its jurisdiction by reason of s75(1)(a) of the Act (as well as s9(1) of the ADR Act). As such, in considering the appropriateness of the orders sought by the Commissioner, regard must also be had to s 75(5) of the Act which expressly prohibits the disclosure of certain material to an applicant.
Section 75(5) provides that in determining an application for an administrative review of any such decision, 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 s11(5A) or s29(3A), and in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative.
Section 11(5A) of the Act provides, in respect of general restrictions on the issue of licences, that: "A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that -(a) The person is a risk to public safety, and (b) The issuing of the licence would be contrary to the public interest"
As noted in Pendrick: "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 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."
These considerations point to the desirability of determining at the substantive hearing whether to admit the Confidential Material (or some of it) into evidence. They also point to the desirability of considering, at the same time, whether to prohibit the disclosure of that material to the Applicant while simultaneously considering the Applicant's objections based upon estoppel and procedural fairness.
It may be appropriate at the final hearing to have a confidential session under s 49 of the CAT Act at which time, the Commissioner may make submissions as to whether non-disclosure orders should be made. It would also be appropriate to give both parties an opportunity, in 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.
In the interim, it is prudent to make orders prohibiting the publication and disclosure of the Confidential Material to the Applicant pursuant to s 64(1)(c) and (d), pending further order. The question of whether such orders should be made on a final basis, in relation to any material which is admitted into evidence, should be determined at the hearing.

Orders

The Tribunal orders: 1. I set aside order 2 and 3 made on 2 November 2021. 2. I confirm orders 4 and 5 made on 2 November 2021. 3. Pursuant to s 59 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), copies of the documents comprising the Confidential Material (which were the subject of the Respondent's application heard on 2 November 2021), are not required to be lodged with the Tribunal. 4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 disclosure of the Confidential Statement dated 19 October 2021 and the Closed Submissions dated 19 October 2021, and of matters contained in that Statement or in those Submissions, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal. 5. Pursuant to s64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the interlocutory hearing of 2 November 2021 is prohibited. 6. Pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 publication of the Confidential Material (which was the subject of the Respondent's application heard on 2 November 2021), and of matters contained in that material, is prohibited pending further order. 7. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, disclosure of Confidential Material (which was the subject of the Respondent's application heard on 2 November 2021), and of matters contained in that material, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal, pending further order 8. Except pursuant to order (9) below, all paragraphs marked "[Not for publication]" are not to be published pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013. 9. A copy of these reasons, without redaction, shall be released to the Respondent. 10. The Respondent's application heard on 2 November 2021 is otherwise dismissed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2021

Civil and Administrative Act 2013(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

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Legislation Cited (3)

Cases Cited (3)

Cited By (1)