Laughton v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-07-12|Before: Health J

ial Statement and (c) matters contained in the Confidential Documents and the Confidential Statement is restricted to the Commissioner, the legal representative for the Commissioner and the Tribunal. 3. Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act (NSW) 2013, the publication and reporting of the Private Hearing of this application, including any evidence given is prohibited.

REASONS FOR DECISION

The applicant, Mr Laughton seeks review of the Commissioner of Police's (the Respondent) decision made on 17 November 2020 under the Firearms Act 1996, to revoke his category ABH gun licence. The decision was internally reviewed and affirmed by the respondent on 17 February 2022. The respondent has applied for an order that certain information and documents not be published and be kept confidential in the course of these proceedings.

Relevant Law

In determining whether the respondent should be permitted to rely on confidential materials at the final hearing requires an examination of ss 48, 58, 59 of the ADR Act and ss 49(2) and 64 of the CAT Act.
These provisions make clear that the starting point, is the presumption that the Tribunal's hearings are open to the public. Section 49(1) of the 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 open to the 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, and the public, if the Tribunal is satisfied that it is 'desirable' to do so; ss 49(2) and 64(1) of the CAT Act.
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.
The relevant authorities were recently summarised in Pemberton v Commissioner of Police [2022] NSWCATAD 109 by Senior Member Isenberg and do not need to be rehearsed again in this decision.
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].
The resultant unfairness caused to the applicant arising from him or her being unable to know or respond to information relied on by the respondent and considered by the Tribunal is not a reason to not make a confidentiality order as there is an explicit provision for such an outcome in both the CAT Act and the ADR Act.
As stated in Grant v Commissioner of Police [2020] NSWCATAD 158 at [23], orders for confidentiality disentitling the applicant to know the evidence against him or her, does not lead the Tribunal to giving weight to evidence where it is in the nature of speculation, from an anonymous source or where adverse evidence could have been but was not put to the applicant during cross examination.

Evidence

The respondent relied on the statement of Senior Constable Ian Hunt dated 25 May 2022 and written submissions. The statement and written submissions were provided in an open and confidential bundle. Both parties had an opportunity to make oral submissions. The applicant, through his solicitor chose not to do so. I have taken into consideration the one-page submission provided by the applicant.
Senior Constable Hunt ("SC Hunt") has been a police officer for 19 years. He is currently attached to the compliance and enforcement division within NSW Police Force Firearms Registry. SC Hunt has viewed the Confidential Documents and states that it comprises records and documents held by NSW Police Force that contain confidential information, confidential criminal reports, criminal intelligence and criminal history in respect of the applicant. SC Hunt says that the Confidential Documents are only accessible to law enforcement personnel with a certain clearance. SC Hunt is of the opinion that the confidential information is subject to a claim of public interest immunity to prevent their disclosure and use. I accept SC Hunt's unchallenged evidence.
The applicant contends that the use of the Confidential Documents in the proceedings without disclosure denies him procedural fairness and a fair hearing. He says he is prejudiced in not being able to cross examine witnesses and make anything other than limited submissions.
The material and submissions presented in the Private Hearing by the respondent (Confidential Documents) were given on a confidential basis.

Consideration

I have considered the Confidential Documents and I am satisfied that they disclose police methodology, current criminal investigations and reveal confidential sources of information.
This decision concerns the question of confidentiality and makes no findings about the credibility of the Confidential Material relied on by the respondent. This will be a matter that will be dealt with at the substantial hearing.
I have taken into account, that, in part, the Tribunal when review the decision of the respondent in revoking the applicant's firearm licence will involve whether it is in the public interest for him to hold a firearms licence (s 24(2)(d) Firearms Act). Broad considerations about protecting the public and identifying possible risks to public will need to be considered and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
I have considered the applicant's submissions concerning procedural fairness. Ordinarily, the Tribunal is bound by principles of procedural fairness or natural justice. It 'may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice' (the CAT Act, s 38(2)). An express exception to this is found at s 64(1)(d) of the NCAT Act. The Tribunal is permitted pursuant to that section to make an order that evidence be withheld from a party if the Tribunal considers this to be 'desirable'. The word 'desirable' should be interpreted with regard to the most basic common law precept of open justice (see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)).
In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d): "Section 64(1)(d) is a provision which applies generally to the proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of 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."
The Court of Appeal has noted the 'sharp contrast' between s 64, which permits an order preserving confidentiality of documents to be made where the Tribunal considers it to be 'desirable', and the 'relatively onerous' regime for suppression orders established by the Court Suppression and Non-Publication Orders Act 2010. See, Misrachi v Public Guardian [2019] NSWCA 67, at [13]; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 ("DRJ"), at [23]. In particular, as observed by Leeming JA in DRJ at [24]: "[i]t is to be firmly borne in mind that an application for merits review in a State Tribunal is quite different from commencing civil proceedings in the Supreme Court. When the applicants commence proceedings in the Supreme Court, the principle of open justice was engaged, as was noted in Tilly v Children's Guardian [2017] NSWCA 174 at [46]. Open hearings are a hallmark of curial determination of proceedings." His Honour went on to say at [27]: "The important role of public and professional scrutiny of curial proceedings explains the significance between the powers in section 64 of the Civil and Administrative Act 2013 and the Court Suppression and Non-Publication Orders Act."
In Dezfouli at [81], the Appeal Panel set out the following considerations of relevance in a case determining whether an order pursuant to the equivalent of s 64 should be made as follows: "(a) the presumption if favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order as in this case prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interest; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order."
Consideration (g) in this application is not relevant. The nature of the order sought (consideration (d)), is relevant and weighs in favour of strong reasons for making an order being required (consideration (b)). However, consideration (e) clearly demonstrates that s 64 confers a discretion on the Tribunal to make a non-disclosure order for a broad range of reasons.
In our view the most relevant considerations, as mentioned in Dezfouli, are (a), the open justice principle, and consideration (b), the need to establish good grounds, or good reason, for making the order.
The nature of the Confidential Documents leads me to conclude that the circumstances of this case are sufficiently special that the making of the orders sought is "desirable" within the meaning of ss 49(2) and 64(1) of the CAT Act.

The Principle of Open Justice

The High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 98 - 100, confirmed the proposition that by putting the substance, rather than precise details, of allegations to a person is a procedurally fair way to approach information provided on a confidential basis where there is a public interest in preserving a flow of information to an agency.
I am satisfied that the applicant, and open justice, is adequately safeguarded by the fact that he has been informed of the substance of the information held by the respondent in respect of him. I find that by the respondent not lodging the Confidential Documents will not deprive the applicant of the opportunity to put his case before the Tribunal.
While the Confidential Documents have some relevance to the applicant being a fit and proper person, the public interest is served in keeping the information confidential as it is of a special nature and outweighs the applicant's private interest (category (f) in Dezfouli).
I am satisfied that the presumption in favour of open justice can be maintained by excluding the Confidential Documents for these reasons.
I find that if an application were made, it would be appropriate for the Tribunal to make an order pursuant to s 64(1)(d) of the NCAT Act in respect of the Confidential Documents.
It therefore follows that I am satisfied that an order should be made pursuant to s 59(2)(b) of the ADR Act such that the Respondent not be required to lodge the Confidential Documents with the Tribunal under s 58 of that Act.

Orders 1. Pursuant to s 49(2) of the Civil and Administrative Tribunal Act (NSW) 2013, the hearing of this application be conducted in the absence of the Applicant, the legal representative for the Applicant, and the public ("the Private Hearing"). 2. Pursuant to s 59 of the Administrative Decisions Review Act 1997, the Respondent is not required to lodge copies of the documents, omitting pages 17 to 23 ("the Confidential Documents"), described in the confidential statement provided to the Tribunal by the Commissioner ("the Confidential Statement"). 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (NSW) 2013, the publication of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Statement and (c) matters contained in the Confidential Documents and the Confidential Statement is prohibited. 4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act (NSW) 2013, the disclosure of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Statement and (c) matters contained in the Confidential Documents and the Confidential Statement is restricted to the Commissioner, the legal representative for the Commissioner and the Tribunal. 5. Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act (NSW) 2013, the publication and reporting of the Private Hearing of this application, including any evidence given is prohibited.

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: 18 July 2022

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