Manning v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2019-12-17

Reasons for decision

This is an ex parte interlocutory motion by the respondent Commissioner seeking confidentiality for certain evidentiary material and exemption from the obligation to file and serve certain documents as required by s 58 of the Administrative Decisions Review Act 1997 (ADR Act).
On 14 October 2019, the applicant Mr Terrence Manning applied to this tribunal for review of a decision by a delegate of the respondent made on 12 September 2019 affirming a decision made by the respondent to revoke the applicant's firearms licence in accordance with s 24(2)(d) of the Firearms Act 1996 and cl 20 of the Firearms Regulation 2017.
The applicant had been issued with a category AB firearms licence on 11 February 2016, to expire on 11 February 2021, for the purposes of recreational hunting/vermin control and clay target shooting. On 26 October 2006, he was issued with a firearms licence for the reason of primary production.
On 26 September 2018 he came to police notice following a domestic incident report involving himself and his wife Mrs Kate Manning. Following some interaction with police, he was arrested and his registered firearms were impounded. In the course of so doing, police located some shotgun shells being unsafely stored and a handgun in the glove compartment of a vehicle parked outside his residence. The applicant said it had been built by his grandfather in 1945 and was not functional. It appeared to be old and no make, model or serial number could be located on it.
On 26 September 2018 he was served with an interim apprehended violence order (IAVO) for the protection of his wife and three children. The order was varied on two occasions to remove his children as the persons in need of protection. The order was extended on 6 November 2018. On 7 June 2019, he appeared before Hay Local Court and was convicted of the offence of not keeping a firearm safely (not prohibited firearm/pistol) and sentenced to a 12-month community correction order. That order was varied by the District Court on 6 August 2019. He was found guilty of the offence, but the charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.

Applicable legislation

Section 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act) 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.
Confidentiality orders relating to evidence and proceedings are regulated by s 64, which relevantly provides: 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.
Section 59 of the Administrative Decisions Review Act 1997 (ADR Act) gives the tribunal the power to direct that an administrator not be required to lodge certain documents as would otherwise be required by s 58 of that 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) 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.
In the present interlocutory application, the respondent seeks orders under those provisions.

The evidence

The respondent did not call oral evidence but relied on the s 58 documents (exhibit R1) and confidential exhibit CR2.
The police fact sheet for the incident on 25 September 2018 (matter number H134692702, part exhibit R1) states that in the course of an argument with his wife Mrs Kate Manning, the applicant assaulted her twice by throwing her against the refrigerator and throwing a dining room chair at her while she was attempting to reach their four-year old child. Mrs Manning called police after locking herself and others of their children inside a bedroom. While waiting for police, she walked outside and saw the applicant standing near the side of the house holding a firearm. She approached police as they were driving into the property and informed them that he had a gun. She was extremely distressed.
The applicant was not cooperative with police, refusing to comply with police directions, but was eventually handcuffed and placed into the rear of the police vehicle. Police seized his registered firearms, but in the process located 36 shotgun shells being unsafely stored, as well as a handgun in the glove compartment of a vehicle parked outside the residence. The applicant said his grandfather had manufactured it in 1945 and that it was not functional. He was subsequently charged with two counts of common assault and three firearms offences.
As was noted above, on 7 June 2019 at Hay Local Court he was convicted of failing to keep a firearm safely (not prohibited firearm/pistol) and sentenced to a community correction order. On appeal to the District Court on 6 August 2019 the charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act.
The respondent also relied on the confidential affidavit (confidential exhibit CR2).
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Consideration

The normal rule in the tribunal is that its hearings are open to the public and its reasons for decision given publicly, sometimes orally, but more often in writing. That rule is recognized in s 49(1) of the CAT Act. As the Appeal Panel has said, however, the principle of open justice must sometimes be balanced against other values. There are other public interests that may militate against identifying witnesses or third persons mentioned in proceedings (CYL v YZA [2017] NSWCATAP 105, [94] - [96]). That is particularly so where the evidence to be provided concerns evidence of a sensitive nature provided by a victim or matters that are being investigated by police.
Before making an order under s 59 of the ADR Act or s 64 of the CAT Act, 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" (Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41, [3]).
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For the purposes of this application I assume that the facts are as stated in exhibits R1 and CR 2. In my view that evidence makes a cogent case for the grant of confidentiality and I will make the orders as asked. I understand that the respondent proposes to produce an edited version of the material with the confidential parts removed, which can be filed and served on the applicant in accordance with s 58 of the ADR Act.

Orders 1. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of this application be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public. 2. Pursuant to s 59 of the Administrative Decisions Review Act 1997, the respondent ("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"). 3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and the Confidential Affidavit, or matters contained in the Confidential Material and the Confidential Affidavit, is prohibited. 4. Pursuant to s 64(1)(d) of the CAT 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. 5. Pursuant to ss 64(1)(b) and 64(1)(c) of the CAT Act, the publication and recording of the hearing of this application, including any evidence given during the hearing, is prohibited. In addition to the orders set out above, pursuant to ss 64(1)(c) and (d) of the CAT Act, the transcript and recording of the confidential hearing, confidential exhibits CR 2 and CR 3 and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.

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: 08 January 2020

Civil and Administrative Review Act 2013(NSW)

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