Pendrick v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2021-11-09|Before: Dr J

Background

On about 11 March 2021, Mr Pendrick applied for a Category AB firearms licence. He stated on his application form that the reason he needed a firearms licence was "shoot on rural land." He also stated: "I have permission to shoot from owner or occupier of rural land." In response to the question as to why he required a category B licence, he stated: "Humane destruction of larger vermin/appropriate actuation, calibre, and for target animal (vermin)."
On the same day, Ms Pendrick applied for a Category AB firearms licence. She gave exactly the same reasons for needing a firearms licence and needing a category B licence as those given by her husband.
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."

Extension of time

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)).
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 Civil and Administrative Tribunal Act 2013 (NSW) ("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)).
The internal reviews of the decision to refuse Mr Pendrick a licence and the decision to refuse Ms Pendrick a licence, were taken to have been finalised on 11 May 2021, being 21 days after the internal review application was made (Administrative Decisions Review Act, s 53(9)(b)). 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.
The applicants did not apply for an extension of time when filing their applications, but instead checked the box indicating that the applications were filed within time. This issue of the need for an extension of time was not raised by the respondent; I identified it in my written reasons in Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326. It was then the subject of discussion at the hearing, when the applicants' representative made clear that the applicants wished to apply for an extension of time. In these circumstances, I have dispensed with the requirement that each application for an extension of time be in writing (NCAT Rules, r 8).
The Commissioner did not object to the Tribunal extending time. It is relevant, in my opinion, that the administrative reviews were sought following the Commissioner's non-compliance with s 53(6) of the Administrative Decisions Review Act. Subsection 53(6) requires the administrator, within 21 days of the lodgement of the internal review application, to provide the applicant with written notice of the outcome of the internal review, the reasons for the decision and the applicant's right to have the decision reviewed by the Tribunal.
I decided to extend time for the lodging of each application under s 41 of the NCAT Act. I took into account, when exercising my discretion to extend time, that the applications were only three days late, that they were lodged in circumstances where the respondent had not complied with the obligation to complete an internal review with reasons for decision, and that the extension of time was not opposed.

Relevant law

The underlying principles of the Firearms Act are as follows: 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety - 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms, and 1. to facilitate a national approach to the control of firearms (Firearms Act, s 3(1)).
The objects of the Firearms Act include "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms" (s 3(2)(d)).
An application for a licence must be made in an approved manner (Firearms Act, s 10(1)). The Commissioner may issue a licence in respect of an application, or refuse any such application (Firearms Act, s 11(1)). As Basten JA commented in Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368 at [1], "the power to grant an application is tightly constrained."
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 the person is a risk to public safety, and the issuing of the licence would be contrary to the public interest (Firearms Act, s 11(5A)).
The Commissioner is also prohibited from issuing a licence in certain other circumstances, including where the Commissioner is not satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace (Firearms Act, s 11(3)(a)). Without limiting the generality of s 11(3)(a), 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 (Firearms Act, s 11(4)).
The Commissioner also has a discretion to refuse to issue a licence. Despite any other provision of s 11 of the Firearms Act, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest (Firearms Act, s 11(7)).
A person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of certain decisions, including the refusal of the Commissioner to issue a licence to the person (Firearms Act, s 75(1)(a)).
In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act, s 63(1)).

Hearing

The parties filed evidence prior to the hearing.
Mr Pendrick and Ms Pendrick each filed a written statement, in the form of a letter. Each applicant relied upon a number of written references.
In his statement, Mr Pendrick stated that he needed the licence as he does vermin control on properties around Humula and where he cuts firewood for his firewood business. He also stated that neither Ms Pendrick nor himself has been in trouble with the law since his incarceration "many years ago." He also stated that he and his wife "have been law abiding citizens who enjoy taking our children out for a shot when we can and teach them about safe handling." He also stated that: "Since my incarceration I learnt my lesson and have done the right thing ever since."
Ms Pendrick's statement was similar. She said that she and her husband both did vermin control on properties around Humula. She also stated that neither her husband nor herself had been in trouble with the law whilst holding a weapons licence and that they had been law-abiding citizens.
The references the Pendricks provided included: 1. a reference from Larry Seekold stating that since Mr Pendrick "obtained his weapons licence some 7-8 years ago, he has had no problems remaining lawful"; 2. a reference from William Wilkinson describing Mr Pendrick as an honest and hardworking member of his community; 3. a reference from Matthew Hunter acknowledging Mr Pendrick's incarceration but describing him as an "honest and trustworthy person" and also describing Ms Pendrick as "a genuine, honest, caring and hardworking person"; 4. a reference from Brian Wilkinson, who describes Mr Pendrick as having always demonstrated good character.
The Pendricks also provided reference from persons including Wendy Slack-Smith, Simon Locke, Harrison Sykes, Vincent Sykes and Rex Jackson stating that Mr Pendrick (and in some cases Ms Pendrick) has permission to conduct feral animal control on the person's property.
The Commissioner filed documents under s 58 of the Administrative Decisions Review Act and a bundle of supplementary documents. The Commissioner also relied upon an open Statement of Sergeant Nigel Turney and sought to rely upon a confidential Statement of Sergeant Nigel Turney and other confidential material which the Commissioner sought to tender as evidence.
A hearing was held by telephone on 9 November 2021. Both applications were heard together.
The applicants were represented by their solicitor Mr Kable. The respondent was represented by Mr Zoppo.
The applicants both gave oral evidence and were both cross-examined.
Following the open hearing, I held a closed hearing. Only the respondent's legal representative and other representatives of the respondent were permitted to attend that hearing (by telephone). The purpose of the closed hearing was to allow the Commissioner's legal representative to make submissions about the confidential evidence he sought to tender.
At the end of the hearing, I reserved my decision.

Commissioner's case

The Commissioner was directed to file written submissions by 21 October 2021. The Commissioner did not comply with this direction but instead filed written submissions after 5pm on Friday 5 November 2021, one working day before the hearing on Tuesday 9 November 2021. As indicated above, the Commissioner did not comply with the obligation to complete an internal review. The result was that the applicants were not put on notice of the Commissioner's case until very shortly before the hearing.
The Commissioner referred, in his written submissions, to s 11(3), (4) and (5A) of the Firearms Act (broadly, the "fit and proper person," "continuous and responsible control" and "public safety and public interest" grounds for refusing an application). In the conclusion to the written submissions, however, the Commissioner submitted that: 1. Mr Pendrick's application be refused because it is against the public interest; and 2. Ms Pendrick's application be refused because it is against the public interest and because the Commissioner has reasonable cause to believe that she may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances.
At the hearing, Mr Zoppo clarified that the Commissioner did not rely upon the fit and proper person ground in s 11(3)(a) of the Firearms Act. Mr Zoppo also indicated that the reference in the submissions to s 11(5A) was an error and that the Commissioner relied only upon s 11(7) of the Firearms Act in relation to the public interest. Mr Kable, for the applicants, did not object to this change of position or request an adjournment to deal with it. Accordingly, I have considered the application of s 11(7) of the Firearms Act and have not considered the application of s 11(5A).

Would Ms Pendrick exercise continuous control over firearms?

The "continuous and responsible control" ground may be dealt with briefly.
The Commissioner submitted that there was reasonable cause to believe that Ms Pendrick may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances within s 11(4) of the Firearms Act.
Mr Pendrick and Ms Pendrick reside together. The Commissioner submitted that there was a concern that, should Mr Pendrick's firearms licence be refused, Ms Pendrick may not be able to exercise continuous and responsible control of the firearms held by her to the exclusion of Mr Pendrick.
Mr Zoppo cross-examined Ms Pendrick about her storage of firearms. Ms Pendrick's evidence was that she had a separate safe storage facility from her husband. It has a lock and key, and a combination lock. She keeps the keys to the safe in another safe which is bolted to the floor. Ms Pendrick's evidence was that Mr Pendrick did not have access to the safe and did not know the password. Ms Pendrick also gave evidence that she would ensure, if Mr Pendrick did not have a firearms licence, that he would not obtain access to her safe.
I accept Ms Pendrick's evidence, which was not challenged.
I do not consider that there is reasonable cause to believe that Ms Pendrick may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances.

Whether issue of each licence would be contrary to the public interest

Subsection 11(7) of the Firearms Act was the subject of consideration by the New South Wales Court of Appeal in Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368. All three members of the Court expressed opinions to the effect that the subsection was not limited by the other subsections in s 11.
Basten JA (with whom Leeming JA agreed) discussed the relationship between s 11(3)(a) (which prohibits the issue of a licence unless the Commissioner is satisfied that the applicant is a fit and proper person) and s 11(7). His Honour concluded that "no bright line can be drawn between the factors relevant under subs (7) and those which must be addressed under the other subsections" of section 11 (at [41]). After expressing his agreement with Basten JA's reasons, Leeming JA found that "[t]he opening words of s 11(7) ("Despite any other provision of this section") tell against a construction where the exclusion of some matters from one qualification upon power impliedly operates to exclude the same matters from a separate and overriding qualification to the power" (at [93]). White J (dissenting) agreed that "the matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3)" (at [106]).
Subsection 11(7) requires the Commissioner, and the Tribunal standing in the Commissioner's shoes, to consider whether the issue of the licence would be contrary to the public interest. The public interest "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual" (Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [70]). The expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view" (O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216, cited in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527 at [299]).

Provision of false and misleading information

One of the reasons advanced by the Commissioner in his written submissions as to why it is not in the public interest to issue a licence to Mr Pendrick is that he provided false and misleading information on applications for firearms licences. This was a circumstance which was not relied upon by the Commissioner when refusing Mr Pendrick's application for a licence and of which Mr Pendrick had not been made aware before the filing of the Commissioner's written submissions. For this reason, I gave Mr Pendrick leave to give some oral evidence on this topic at the hearing.
The circumstances concerning the false information on Mr Pendrick's licence application forms are as follows.
Mr Pendrick was subject to an apprehended violence order issued on 4 April 2002. The order expired on 3 April 2003. Pursuant to s 11(5)(c) of the Firearms Act, a licence must not be issued to a person who is subject to an apprehended violence order ("AVO") or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order.
On 13 December 2012, Mr Pendrick applied for a firearms licence. Part H of the form required the applicant to check "yes" or "no" in response to questions (a) to (f). Question (f) relevantly asked: "Have you in NSW or elsewhere within the last 10 years been the subject of a Apprehended Violence Order …?" Mr Pendrick checked the "No" box. He then signed a declaration which, amongst other things, indicated that he agreed to the NSW Police Force undertaking enquiries to establish that the information he had provided was true and correct.
On 22 January 2013, a delegate of the Commissioner wrote to Mr Pendrick, stating that a decision had been made to refuse his application. The reasons given by the delegate were that, as a result of the AVO expiring on 3 April 2003, any application for a firearms licence made before 3 April 2013 must be refused on mandatory grounds. It is not clear from the evidence whether Mr Pendrick received that letter.
On 5 April 2013, Mr Pendrick submitted another application for a firearms licence. On the application form, in response to the question whether he had been refused a firearms licence, he checked the box stating "No." He then signed a declaration in the same terms as the declaration he signed on 13 December 2012.
On 12 May 2018, Mr Pendrick completed a form entitled "Re-Application for a Personal Firearms Licence." In response to the question whether he had been refused a firearms licence, he checked the box stating "No." He then signed a declaration in the same terms as the declaration he signed on 13 December 2012.
On 4 September 2020, Mr Pendrick's firearms licence was revoked. The letter advising Mr Pendrick of this decision stated that the Commissioner's delegate had concerns about his domestic circumstances and was of the opinion that it was not in the interests of public safety for him to possess a firearms licence. The Commissioner's submissions, in these proceedings, indicated that those domestic circumstances concerned the applicants' status as protected persons for an AVO issued against Ms Pendrick's former partner.
On 11 March 2021, Mr Pendrick made the application for a licence with which these proceedings are concerned. He did not declare the refusal of 22 January 2013 in the licence application but did declare the revocation on 4 September 2020.
Mr Pendrick explained, in oral evidence, that he had applied for a firearms licence in 2012. He said he was told by a woman at the firearms registry in a telephone conversation after he had applied that he had made his application a few weeks early. She told him the date on which he could apply. He said he was not sure whether or not he had received written confirmation that the application had been refused.
Mr Zoppo, the Commissioner's legal representative, suggested to Mr Pendrick in cross examination that he knew when he lodged the application in December 2012 that he was well within the 10-year period (that is, the 10 years after an AVO in which the Commissioner was bound to refuse his application). Mr Pendrick's response was that he had completely forgotten about the AVO. When asked whether he knew that he could not lodge an application for a period of 10 years after an AVO, he responded that, as far as he knew, he had to wait 10 years, but he did not realise that it was 10 years "after it ran out."
Mr Zoppo also questioned Mr Pendrick about the application form he lodged in 2013. He put it to Mr Pendrick that he must have known that his earlier application had been refused. Mr Pendrick said that he did not understand that that was a refusal. He had understood that his time was not up. When Mr Zoppo pressed Mr Pendrick, suggesting that it was clear to him that his first licence application had been refused, Mr Pendrick responded that he was not too sure on that and that 2013 was a fair time to remember back to.
The Commissioner relied upon a series of Tribunal decisions for the proposition that it is not in the public interest for an applicant to continue to hold a firearms licence in circumstances where the licence has been obtained on the basis of an application that is misleading in a material particular. One of the objectives of the Firearms Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner (Himo v Commissioner of Police [2021] NSWCATAD 321 at [83], Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18]).
In Bladen v NSW Commissioner of Police [2015] NSWCATAD 240, the Tribunal was not satisfied that Mr Bladen was honest with the Tribunal in respect to his completion of the forms (at [47]). It found (at [51]) that he had contravened s 70 of the Firearms Act which provides that a person must not, in or in connection with an application under the Firearms Act, make a statement or provide information that the person knows is false or misleading in a material particular. As a result, the Tribunal found that it was not in the public interest for Mr Bladen to continue to hold a firearms licence in circumstances where the licence has been obtained on the basis of an application that is misleading in a material particular (at [53]).
In Howison v Commissioner of Police [2021] NSWCATAD 157 at [93] the Tribunal found that "[t]he multiple instances of the applicant's supplying false and misleading information on official forms is a substantial factor supporting licence refusal."
In Saxby v Commissioner of Police [2021] NSWCATAD 275, the Tribunal found (at [77]) that the applicant had "failed, not once, but three times, to answer correctly the clearly worded and unambiguous question of whether he had been treated for a mental disorder in the 12 months before the date of each application." It considered that the applicant had been less than candid with the Registry about his mental health issues (at [86]). The Tribunal took this account when determining that it was not in the public interest for him to hold a firearms licence (at [98]).
In Himo v Commissioner of Police [2021] NSWCATAD 321, the Tribunal observed that it was difficult to conclude that the applicant did not knowingly intend to provide false information on his application forms, where his licence had been suspended and revoked a number of times and this was not acknowledged on the forms (at [85]). This was a factor supporting the Tribunal's conclusion that it was not in the public interest for him to hold a firearms licence (at [106]).
In Leatham v Commissioner of Police [2021] NSWCATAD 121, the Commissioner argued that a declaration on the applicant's application form was false and misleading and was an offence under s 70 of the Firearms Act. The Tribunal accepted the applicant's evidence that he had misunderstood the question asked and had not intended to mislead. It set aside the Commissioner's decision to refuse the applicant's application for a firearms licence.
Mr Pendrick relied upon Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16, a decision of the former Administrative Decisions Tribunal's Appeal Panel (ADT Appeal Panel). In that case, the Commissioner submitted that Mr Constantin had given deliberately misleading answers on an application form for a licence in Queensland. This was a factor leading the Commissioner to conclude that he was not a fit and proper person to be granted a licence. The Tribunal upheld that decision and Mr Constantin appealed.
The ADT Appeal Panel made the following observations (at [26]): As noted, the Tribunal's fitness finding rested solely on the deception involved in the filling out of the Queensland application form. We have some concern over a finding as to lack of fitness that is so narrowly based. While the appellant's account was self-serving and his understanding of his personal responsibilities for ensuring the accuracy and truth of an application misguided, minds might differ on whether a single event of this kind should lead to the very serious finding that a person is unfit to be granted a licence.
These decisions establish that the making of false or misleading statements on an application form may, in some circumstances, be a factor indicating that it is in the public interest for a person not to hold a firearms licence. However, that will depend upon the circumstances of the case. Where a statement is false or misleading, the question of whether the applicant intended to mislead is relevant.
I am not satisfied that Mr Pendrick deliberately misled the Commissioner, or the Commissioner's delegate, when filling out the application forms of 13 December 2012, 5 April 2013, 12 May 2018 and 11 March 2021. The Commissioner apparently did not take the view that he had done so when issuing Mr Pendrick with a licence in 2013 and 2018, or even when refusing his application for a licence in 2021.
Mr Pendrick's completion of an application form in December 2012 occurred over nine years ago. I accept Mr Pendrick's evidence that that period "was a fair time to remember back to." Where a matter such as this is raised by the Commissioner a very long time after the relevant events, and where the Commissioner has had ample opportunity to raise the issue earlier, it is prejudicial to the person concerned.
Mr Pendrick's evidence on this point was not entirely consistent. He said that he had completely forgotten about the AVO when he lodged the application then he said that he knew he had to wait ten years but did not realise it was ten years from when it "ran out" (implicitly indicating that he thought it was ten years from when it commenced). Given the time that has elapsed since 2012, I am not prepared to draw an adverse inference from this inconsistency. Mr Zoppo did not ask Mr Pendrick questions about the inconsistency. It may be that Mr Pendrick had thought, at one point, that he had ten years from the commencement of the AVO but, when lodging the application, he had forgotten about it.
Had Mr Pendrick knowingly made a misleading statement on his application form, this would be an offence carrying a maximum penalty of five years' imprisonment (Firearms Act, s 70). In approaching the question of whether Mr Pendrick did so I have adopted the approach to fact-finding set out in Briginshaw v Briginshaw (1936) 60 CLR 336, even though the Tribunal is not bound by the rules of evidence (NCAT Act, s 38(2); Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]). That is, given the seriousness of the allegation, I have been mindful of not reaching a state of reasonable satisfaction on the basis of "inexact proofs, indefinite testimony, or indirect inferences" (Briginshaw v Briginshaw (1936) 60 CLR 336 at 362).
I do not feel an "actual persuasion" that Mr Pendrick knowingly made a misleading statement on his application form in 2012 (Briginshaw v Briginshaw (1936) 60 CLR 336 at 362). It is quite possible that, when he indicated on the application form, in December 2012, that he had not been the subject of an AVO in the last ten years, he believed this to be correct. It was, at the time, over ten years since the AVO was made and over nine and a half years since it expired. He may have forgotten about the AVO or he may have erroneously thought that the question was asking him whether it was over ten years since the AVO commenced. In any event, I am not persuaded that his answer was knowingly incorrect.
Similarly, I do not feel an actual persuasion that Mr Pendrick knowingly provided incorrect information on his application form in April 2013 when he indicated that he had not been refused a firearms licence. His evidence was that he did not recall receiving the letter from the Firearms Registry stating that his licence had been refused and there was no evidence that he had actually received it. Even if he had received the letter, Mr Pendrick said that he had not understood that the licence had been refused, but just thought that his time was not up.
Again, it is difficult for a person to remember why they filled out an application form in a particular way nearly nine years after the event. Mr Pendrick was aware that his application had been rejected by the Firearms Registry because it had been made before the expiration of the ten year period since the AVO, in circumstances where he had not informed the Registry about the AVO on his application form. He was aware that the Registry knew about the AVO from his telephone conversation with a woman at the Registry. He would have no reason to think that the Firearms Registry would not have a record that it had recently rejected his application, had he considered this to be a refusal. The failure to check the box on the form is, in these circumstances, very unlikely to reflect an intention to deceive Registry staff.
It is more likely that Mr Pendrick did not consider the rejection of his application to be a refusal, because it occurred because time was not up (as he saw it). Alternatively, he may not have read the form as closely as he should have done before checking the boxes. In any event, I do not consider Mr Pendrick's completion of the application form in 2013 to provide a persuasive reason to refuse his application, made in 2021, on public interest grounds.
I have the same view about the applicant's completion of the application forms in 2018 and 2021. The circumstance that Mr Pendrick declared, on his 2021 application form, that his licence had been revoked in 2020, but did not declare that his licence had been refused in 2013, supports the conclusion that he did not understand that his application had been refused in 2013.

Criminal history

The Commissioner also relied upon Mr Pendrick's criminal history as supporting his position that the issue of a licence to Mr Pendrick would be contrary to the public interest.
In 1988, at the age of 22, Mr Pendrick was convicted of drug offences of possessing, administering and cultivating cannabis. In 1990, he was convicted of the sale and possession of firearms without a licence and taking and selling protected fauna. His other offences include convey live feral pig (1991), cultivate, possess and self-administer prohibited drug (1994) and various counts of supply prohibited drug (2002). He received a custodial sentence of 18 months for the 2002 offences, with a non-parole period of 6 months. He was convicted of using offensive language in or near a public place/school in 2005 and fined $150 and convicted of driving a vehicle under the influence of alcohol in 2014.
Mr Zoppo submitted, orally, that it was "a concern" that the applicant had been involved in the supply of illicit drugs. He submitted that the prohibition on a person who had been convicted of such an offence being granted a licence for ten years (Firearms Act, s 11(5)(b); Firearms Regulation 2017 (NSW), cl 5(1)(b)) demonstrated how the legislature saw this type of offence. He said there were real public interest concerns about people supplying drugs, from a safety perspective and there were risks inherent in people who do this and who have firearms. Mr Zoppo submitted that it was "well known" that where people committed drug offences there was a risk of theft and violence, and possession of firearms in that context gave rise to significant public safety concerns.
As Mr Zoppo acknowledged, Mr Pendrick's drug offences are nearly twenty years old. It may be accepted that the legislature has indicated, in s 11(5)(b) of the Firearms Act, that a person convicted of certain types of offences (as prescribed by the regulations), should not hold a licence for ten years after the conviction. It may also be accepted that the Governor, when making the Firearms Regulation, prescribed certain drug offences for the purposes of s 11(5)(b) of the Firearms Act. It does not necessarily follow that the issue of a licence to a person who was convicted of drug supply offences over ten years ago is against the public interest.
I have some concerns about accepting Mr Zoppo's submission that it is well known that where people commit drug offences there is a risk of theft and violence. There is no evidence to that effect. The submission is made at a high level of generality. The Commissioner has not articulated a logical connection between Mr Pendrick's drug supply offences and an alleged risk of theft and violence. At best, the submission is speculative. The Tribunal would have to infer from Mr Pendrick's criminal history that there is a risk that Mr Pendrick is presently supplying drugs; that there is consequently a risk that other people will steal from him or engage in acts of violence which relate to his drug supply, or that he will steal or engage in acts of violence; and that, as a result, public safety will be compromised.
This is a matter where evidence as to the asserted connection between the supply of drugs and the risk of theft and violence would have been of assistance to the Tribunal. However, it is open to me to infer (and I do infer) that if a person is supplying drugs there is an increased risk of that person using a firearm to threaten other persons. That is because the supply of drugs evidences a disregard for the law, and because, having taken the law into one's own hands, a person may be more likely to use firearms to threaten competitors in the drug industry or clients who do not pay. A drug supplier is not in a position to avail himself or herself of lawful means of ensuring agreements are enforced.
I could not draw the inference from Mr Pendrick's commission of drug offences nearly twenty years ago, without more, that he is currently supply or using illicit drugs. I also note that the Commissioner did not cross-examine him or Ms Pendrick in relation to their evidence that they were both law-abiding citizens and that he is not relying upon the fit and proper person ground. In these circumstances, I do not consider that Mr Pendrick's criminal convictions, taken in isolation, render it contrary to the public interest for him to hold a licence.

Family members and others

The Commissioner relied, in his written submissions, upon evidence that Mr Pendrick's adult son was suicidal at one point in 2019. There was some evidence at the time that Mr Pendrick's adult son was using Mr Pendrick's address.
Mr Pendrick's evidence, which was not challenged, was that his son lives 65 to 70 kilometres away from him and that he sees his son about once a month when he brings the grandchildren over.
Mr Zoppo also asked Mr Pendrick about his other adult children. I accept Mr Pendrick's evidence that they do not live with him.
I do not consider that the circumstances of Mr Pendrick's adult children form a proper basis for finding that it is not in the public interest for Mr Pendrick or Ms Pendrick to hold a firearms licence.

Ms Pendrick's ex-partner

Mr Pendrick and Ms Pendrick were the protected persons for an AVO issued against Ms Pendrick's former partner in February 2020. Mr Pendrick's and Ms Pendrick's firearms licences were temporarily suspended after threatening behaviour of Ms Pendrick's former partner. The conflict with Ms Pendrick's former partner included a dispute about custody of a child of Ms Pendrick and her former partner, who resides with Mr Pendrick and Ms Pendrick.
This conflict about custody has now been resolved, with full custody of the child granted to Ms Pendrick. The evidence of Mr Pendrick and Ms Pendrick, which I accept, is that Ms Pendrick's former partner is now living in Western Australia. Mr Zoppo conceded at the hearing that Ms Pendrick's former partner did not appear to pose any imminent threat.
This is not a factor indicating that it is in the public interest for either applicant to be refused a licence.

Confidential evidence

The Commissioner sought to rely upon confidential evidence in support of the proposition that issuing Mr Pendrick or Ms Pendrick with a licence would be contrary to the public interest. I heard the Commissioner's representative, in closed session, as to the relevance and significance of the confidential evidence he sought to adduce. I indicated that I would consider whether to allow the Commissioner to tender that evidence in circumstances where it was not provided to the applicants, and determine that in my reasons.
The course proposed by the Commissioner, being that I take into account confidential evidence without providing it to the applicants, is in tension with both the principles of procedural fairness and the principle of open justice.
Procedural fairness generally requires that adverse information that is credible, relevant and significant to the decision to be made be disclosed and an opportunity given to the person affected to deal with it (Kioa v West (1985) 159 CLR 550 at 629; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [15]; Chief Commissioner of Police v Nikolic (2016) 338 ALR 683; [2016] VSCA 248 at [30]). Sometimes, where issues of confidentiality arise, it is sufficient to disclose the substance or the "nature and content" of the adverse material (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 ("SZBEL") at [32]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591).
The statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires (SZBEL, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [26]). The content of procedural fairness varies according to the circumstances of each case (HT v The Queen (2019) 269 CLR 403 ("HT") at [18] and [64]; SZBEL at [26]).
The statutory framework in this case includes provisions of the Firearms Act, the NCAT Act and the Administrative Decisions Review Act. The Firearms Act provides, in s 75(1), for persons to apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of certain decisions, including the refusal of the Commissioner to issue a licence to the person (Firearms Act, s 75(1)(a)). Section 75(4) and (5) provide as follows: (4) The following provisions of the Administrative Decisions Review Act 1997 do not apply to an application to the Civil and Administrative Tribunal for an administrative review of a decision referred to in subsection (1) (a) or (c) that was made on the grounds referred to in section 11 (5A) or 29 (3A) - (a) Part 2 of Chapter 3, (b) section 58. (5) In determining an application for an administrative review of any such decision, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013) - (a) 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), and (b) 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.
Subsection 11(5A), which is referred to in s 75(4) and (5), provides as follows: (5A) 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.
Subsection 29(3A) of the Firearms Act, which is also referred to in s 75(4) and (5) of that Act, makes equivalent provision to s 11(5A), but in relation to the issue of permits.
As indicated above, Mr Zoppo, for the Commissioner, expressly disavowed reliance upon s 11(5A) of the Firearms Act. In my interlocutory decision in Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 at [49]-[50], I raised the issue of the proper construction of s 75(5) of the Firearms Act and whether it prohibits the Tribunal from disclosing a "criminal intelligence report or other criminal information held in relation to" a person, irrespective of whether the Commissioner relies upon s 11(5A) of the Firearms Act. I raised this issue with the parties at the hearing.
Mr Zoppo submitted that the prohibition upon disclosure in s 75(5) of the Firearms Act only applies to a decision made under s 11(5A) or s 29(3A) of that Act. That construction is favourable to the applicants and Mr Kable did not argue for any other construction.
In my view, that is the preferable construction. In Tukel v Commissioner of Police, NSW Police Force [2021] NSWCATAD 60 at [27] and [55]-[56], Senior Member Frost accepted the submissions of the applicant that "the words 'any such decision' in s 75(5) refer only to a decision of the kind referred to in s 75(4) - namely, 'a decision referred to in subsection (1)(a) or (c) that was made on the grounds referred to in section 11(5A) or 29(3A)'." The Senior Member reasoned (at [55]-[56]) that: "The reference in s 75(5) to 'any such decision' must, in my view, be a reference only to those decisions specified in s 75(4). Subsection (5) follows on from subsection (4) and it is natural, in light of the language common to both provisions, that the later one refers to the earlier."
I respectfully agree with that reasoning.
Another reason for adopting that construction is that it detracts from the rules of procedural fairness to a lesser degree than the alternative construction (the alternative construction being that the Tribunal was constrained from disclosing any criminal information held in relation to a person). Subsection 75(5) of the Firearms Act modifies the principles of procedural fairness by providing that criminal intelligence report and other criminal information held by the Commissioner in relation to an applicant may be provided to the Tribunal, but not disclosed to the applicant. Procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation (Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 ("SZSSJ"), French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ at 205 [75]). The presumption that procedural fairness applies operates unless clearly displaced by the particular statutory scheme (SZSSJ at [75]). Procedural fairness is clearly displaced by s 75(5) of the Firearms Act in relation to a decision referred to in s 75(1)(a) or (c) that was made on the grounds referred to in s 11(5A) or 29(3A). However, it is not clearly displaced in respect of other decisions.
Further, the construction advanced by the Commissioner is most consistent with the principle of legality. The principle of legality will favour a construction which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and the principles of procedural fairness (Hogan v Hinch (2011) 243 CLR 506 at [5], [27]; Momcilovic v R (2011) 245 CLR 1 at [43]).
It follows that, when considering the statutory scheme for the purposes of determining the content of procedural fairness, Parliament has expressly provided for circumstances in which the rules of procedural fairness are abrogated or partially abrogated. Those circumstances are confined to an application for an administrative review of a decision referred to in s 75(1)(a) or (c) of the Firearms Act that was made on the grounds referred to in s 11(5A) or 29(3A) of that Act. Other than in those circumstances, the legislature has not evinced any intention to detract from the rules of procedural fairness.
The NCAT Act and the Administrative Decisions Review Act are also part of the relevant statutory scheme so must also be considered when considering whether the legislature has evinced an intention to modify the principles of procedural fairness.
The Administrative Decisions Review Act includes some provisions which are relevant to procedural fairness. An administrator has an obligation to provide reasons in the circumstances set out in Part 2 of Chapter 3. An administrator also has a duty to lodge with the Tribunal documents in its possession which it considers to be relevant to the determination of the application by the Tribunal under s 58(1). These provisions are disapplied by s 75(4) of the Firearms Act in relation to certain decisions made on the grounds referred to in ss 11(5A) or 29(3A) of the Firearms Act, but otherwise apply.
The NCAT Act contains many provisions consistent with the duty to provide procedural fairness. Subsection 38(2) of the NCAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. It is uncontroversial that the Tribunal is ordinarily bound by the principles of procedural fairness (see, for example, Liu v Health Care Complaints Commission [2018] NSWSC 315, Wickham v Tiffney [2016] NSWCATAP 203 at [80]-[83]).
The NCAT Act also includes, however, provision for the Tribunal to modify the rules of procedural fairness in a particular case. Section 64(1)(d) of the NCAT Act provides: "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 - … (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."
A loose equivalent of this provision may be found in s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"), which authorises that tribunal to prohibit or restrict disclosure, including to some of the parties, of certain information. Until the current s 35(4) of the AAT Act was enacted in 2015 by the Tribunals Amalgamation Act 2015 (Cth), an equivalent provision was found in the former s 35(2)(c) of that Act. Brennan J considered that provision in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 36 FLR 482; 2 ALD 33 ("Pochi") at ALD 53-54. In 1979, s 35(2)(c) of the AAT Act was in very similar terms to the current s 64(1)(c) of the NCAT Act. Section 35(2) of the AAT Act then provided: (2) Where 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, the Tribunal may, by order - (a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; (b) give directions 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; and (c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal, in relation to the proceeding.
As can be seen, the former s 35(2)(c) of the AAT Act is in very similar terms to s 64(1)(d) of the NCAT Act. Brennan J remarked (Pochi at ALD 54): "Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him - a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal."
His Honour continued (at ALD 55-56): "In the ordinary exercise of this Tribunal's jurisdiction, the Tribunal is required by its statute (s 36(4)) to apply the principle that the parties "should be made aware of all relevant matters", and that is a principle from which the Tribunal departs with reluctance when it is considering the deportation of an alien resident, whose right to remain in Australia is revoked by a deportation order…. Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly."
The important parts of Brennan J's decision for present purposes are that the exclusion of a party from a hearing (and, it might be inferred, from access to evidence) would be "indefensible" in the absence of statutory authority, as it denies the party "fair treatment." A tribunal would generally depart from the principles of procedural fairness by making such an order only "with reluctance." The power to prohibit or restrict the disclosure of evidence to a party is "to be exercised, albeit sparingly" for the purpose of securing to the tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve. In addition, the Administrative Appeal Tribunal's powers are intended to facilitate the flow of relevant information to it.
Those remarks have equal force in relation to the Civil and Administrative Tribunal.
Deputy President Forgie of the Administrative Appeals Tribunal has commented that the step of excluding access to material, not only by the public but also by the applicant, is a "grave one and not one taken lightly." She has observed that that "is all the more so because it effectively over-rides a basic principle that a person is entitled at common law and under the AAT Act (s 36(4)) to be '… made aware of all relevant matters' that are to be taken into account in determining the issues affecting him or her" (VBJ v Australian Prudential Regulation Authority [2005] AATA 642, 60 ATR 1013 at [68]; Re Kanina Banner Pty Ltd v Minister for Health and Ageing (2002) 35 AAR 29; 66 ALD 663 at [25]).
There has been very little judicial consideration of s 64(1)(d) of the NCAT Act or its predecessor, the former s 75(2)(d) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act," which was renamed the Administrative Decisions Review Act when the Tribunal was created). However, Campbell JA, with whom Handley AJA agreed, made some comments about s 75(2)(d) of the ADT Act in AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81. That case concerned a review of the Commissioner's decision to revoke a security licence. The Commissioner relied upon a criminal intelligence report or other criminal information when revoking the licence, as the Commissioner was entitled to do under s 15(6) of the Security Industry Act 1997 (NSW). The Commissioner submitted that s 75(2)(d) of the ADT Act would allow material to be received on a "stay" application, with applicants and their legal advisors denied access to the documentation (at [150]). Campbell JA observed: "…whether the Tribunal would make such an order in any particular case is a matter for the discretion of the Tribunal. When the Tribunal has a specific obligation under s 73(2) to observe the rules of natural justice, there would be an understandable reluctance on the part of the Tribunal to receive evidence, and act on it, when that evidence had not been considered, challenged, countered, or been the subject of submissions by one of the parties."
More recently, in Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d) of the NCAT Act: "Section 64(1)(d) is a provision which applies generally to 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."
It is notable that his Honour considered that circumstances would need to be "extraordinary" before the Tribunal would make an order under s 64(1)(d) of the NCAT Act, given that the effect of such an order is to deny a person procedural fairness. Whilst there is no statutory test requiring the Tribunal to find "extraordinary" circumstances (and I have not applied one), his Honour's remarks emphasise the need to consider, carefully, the displacement of the rules of procedural fairness before making an order under s 64(1)(d) of the NCAT Act.
It is relevant, when deciding whether to make an order under s 64(1)(d) of the NCAT Act in the context of a review of a decision under the Firearms Act, or when deciding whether to admit material into evidence subject to such an order, to take into account the underlying principles and objects of the Firearms Act. Those principles and objects are set out in s 3 of the Firearms Act and include the principle "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety" (s 3(1)(a)). Where the information sought to be adduced confidentially is relevant to public safety, and there is a legitimate reason for its non-disclosure, that would be a factor supporting its admission into evidence on a confidential basis.
It is also relevant to refer to the Court of Appeal's decision in Commissioner of Police, New South Wales v Gray (2009) 74 NSWLR 1; [2009] NSWCA 49. That case considered the proper construction of s 29(3) of the Security Industry Act (a provision in similar terms to s 75(5) of the Firearms Act), and its interrelationship with s 73(2) of the Administrative Decisions Tribunal Act 1997 (NSW), which was in similar terms to s 38(2) of the NCAT Act. McColl JA (Giles and Tobias JJA agreeing) commented of s 29(3): "It is apparent that it was intended to modify the application of the principles of public interest immunity as they might otherwise have applied in an external review of a refusal or revocation of a licence. It ensured that a successful s 29(3) claim did not, as would a successful public interest immunity claim, preclude the Tribunal from considering relevant s 15(6) materials pursuant to s 58(1)(b) and s 63 of the Administrative Decisions Tribunal Act."
Noting that the enactment of s 29(3) of the Security Industry Act post-dated the enactment of s 73 of the Administrative Decisions Tribunal Act, her Honour found that s 29(3) implicitly repealed s 73 to the extent that it would otherwise apply (at [112]). Her Honour also left open the possibility of the application of the maxim that, where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant) (at [117]).
Another relevant principle to consider is that of open justice. Subsection 49(1) of the NCAT Act provides that a hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. Subsection 49(2) authorises the Tribunal to 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. In CYL v YZA [2017] NSWCATAP 105 at [96], the Appeal Panel stated that s 49(1) of the NCAT Act reflects the principle of open justice, but also noted that open justice is a value that must sometimes be balanced against other values.
In the context of an application for non-publication and non-disclosure orders, the Court of Appeal has observed, in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [21], that there is a significant difference between determinations by the Tribunal and judgments of courts. The powers in s 64 of the NCAT Act are "significantly different" from the regime applicable to courts making non-publication and non-disclosure orders (at [23]). Whilst the principle of open justice is engaged in a court (at [24]), the Court of Appeal implied that that principle may have less force in the Tribunal (at [26]), given the statutory scheme. Nevertheless, there is nothing in that judgment which suggests that the Tribunal is not to have regard to the principle.
As indicated above, I made an order for a closed hearing under s 49(2) of the NCAT Act in these proceedings, so as to consider the Commissioner's case in respect of the confidential evidence he proposed to tender. However, the principle of open justice remains relevant to my decision whether to accept the tender of that evidence. To admit evidence which is not available to the public or to the applicant, and to provide open reasons which do not refer to that evidence, is contrary to that principle.
In Grant v Commissioner of Police [2020] NSWCATAD 158 at [18]-[20], I made the following observations, which are relevant here: "18 Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that "[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise" (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, "the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing" (CYL v YZA [2017] NSWCATAP 105 at [94]). 19 The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (NCAT Act, s 38(2)). Section 64(1)(d) provides an express exception to this, permitting the Tribunal 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 basic common law precept of open justice (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))."
There is, in cases of confidential information, often a tension between the requirements of open justice and procedural fairness on the one hand and the public interest in keeping information confidential on the other. Kiefel CJ, Bell and Keane JJ observed, in HT at [43], that "[i]t should not be assumed that procedural fairness should altogether be denied in order that sensitive information be kept confidential. Just as the principle of open justice has been held to yield to the need to do justice in a particular case, so must the requirements of natural justice in a particular case yield to some extent" (footnote omitted). Their Honours suggested that generally orders can be tailored to meet the competing demands of procedural fairness and confidentiality (HT at [43]). In the same case, Gordon J commented that, if a case for production of confidential material is made, "then a party should have as full a degree of appropriate disclosure as is consistent with adequate protection of any confidential information" (at [76]).
Section 64(1)(d) of the NCAT Act authorises the Tribunal to make an order "prohibiting or restricting" the disclosure, to a party, of evidence or the contents of a document. The power to restrict disclosure, without prohibiting it altogether, may enable the Tribunal to balance appropriately the competing interests of procedural fairness and confidentiality. The question of whether to make an order and, if so, what order to make, will depend at least in part upon the basis upon which the order is sought and the public interest (if any) if it said to serve.
From this review of the relevant statutory provisions and relevant authorities, the following principles emerge: 1. The Firearms Act does not evince an intention to deprive an applicant to the Tribunal of procedural fairness, except to the extent that provision is made in respect of a decision referred to in s 75(1)(a) or (c) of the Firearms Act that was made on the grounds referred to in s 11(5A) or 29(3A) of that Act; 2. The legislature has not evinced an intention to displace the rules of procedural fairness in the Administrative Decisions Review Act; 3. The Tribunal is ordinarily bound by the rules of procedural fairness; 4. The Tribunal may make orders prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence or the contents of a document lodged with the Tribunal, 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; 5. Such orders modify the rules of procedural fairness which would otherwise apply; 6. The power to make such orders is to be exercised sparingly and the making of an order denying a party procedural fairness is a grave step, not to be taken lightly; 7. Subsection 64(1) of the NCAT Act, and the question of what is "desirable" under that provision, is to be applied bearing in mind the principle of open justice and the rules of procedural fairness; 8. A decision as to whether to make an order under s 64(1)(d) of the NCAT Act and, if so, what order to make, should be made having regard to the principle that a party should have as full a degree of appropriate disclosure as is consistent with adequate protection of any confidential information; 9. The power to prohibit or restrict the disclosure of evidence to a party is to be exercised, albeit sparingly, for the purpose of securing to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve; 10. It may be relevant, when determining an application under s 64(1) of the NCAT Act in administrative review proceedings under the Firearms Act, that it is an underlying principle of that Act that "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety"; 11. The basis upon which an order under s 64(1)(d) of the NCAT Act is sought, and the public interest (if any) such an order is said to serve, form part of the circumstances of the case which are relevant to determining whether to make the order and, if so, what order to make.
In this case, the Commissioner did not wish to disclose the nature or content of the evidence which he sought to protect by an order under s 64(1)(d) of the NCAT Act. Nor did he provide the applicants with the substance of any allegations contained in that material. The Commissioner's position was that the Tribunal should admit and consider the confidential material tendered on his behalf without disclosing anything about it to the applicants.
As I indicated in Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 at [32], I accept Sergeant Turney's opinion, expressed in his open statement, that disclosure of the Confidential Material would or could: 1. Prejudice future investigations into criminal activity; 2. Expose police methodology; 3. Reveal confidential methods of investigation; 4. Identify confidential sources of information to law enforcement; and/or 5. Place identified persons at risk of harm.
I made orders on an interlocutory basis, in Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326, and orders in the closed session at the hearing, pursuant to s 64(1)(d) of the NCAT Act, prohibiting the disclosure of the Confidential Statement of Sergeant Nigel Turney dated 23 September 2021 and the annexed material which the Commissioner sought to adduce in evidence. The interlocutory orders were made in the context of the Commissioner's application under s 59 of the Administrative Decisions Review Act, for an order excusing him from the requirement to lodge relevant documents under s 58 of that Act, to the extent that he identified the documents as being confidential. I made orders under s 59 of the Administrative Decisions Review Act and, as I explained in my interlocutory reasons (at [52]-[53]), I left the question of whether to admit that material into evidence to the hearing.
At the hearing, I again made orders under s 64(1)(d) of the NCAT Act prohibiting the disclosure to the applicants of the material the Commissioner sought to adduce. This was on the basis that the material constituted "the contents of a document lodged with the Tribunal" within s 64(1)(d) of the NCAT Act and there were public interest reasons supporting the Commissioner's application for that material to be withheld from the applicants and the public. That, however, did not resolve the question of whether the material should be admitted into evidence.
With some reluctance, I have decided to admit the confidential material into evidence for the following reasons.
I found that the material was relevant to determining the issues of public safety and public interest which the Tribunal, standing in the Commissioner's shoes, is required to assess. I admitted the material into evidence, subject to the confidentiality orders, for the purpose of securing to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party or the public is properly entitled to preserve, in the context of making a decision in the public interest.
I had some concerns about the probative value of some of the confidential material which I decided to admit. It would not be admissible in a court of law. Whilst the Tribunal is not bound by the rules of evidence, this does not mean that all rules of evidence may be ignored as of no account (Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 36 FLR 482; 2 ALD 33 at FLR 492). As Brennan J commented in Pochi at FLR 492, the rules of evidence: "represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party."
Further, a tribunal is only entitled to act on material which is logically probative (Pochi at FLR 493). Making a finding of fact on the basis of information from an anonymous source, for example, may, in some circumstances, involve a process which is tainted with illogical or irrational reasoning (SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [108]). Where it is proposed to admit evidence which a party does not have access to, scrutiny of the probative value of that evidence on the one hand, and its prejudicial effect on the other, is all the more important.
The Commissioner made submissions as to why the information he sought to tender should remain confidential. There are public interest considerations which support the information remaining confidential and which also support the Tribunal having access to the information. Given that firearm use and possession is a privilege, and that the Firearms Act has an emphasis on public safety, it is in the public interest that any information which may be relevant to assessing risk to public safety if an application be issued with a licence be before the Tribunal.
I considered whether some degree of procedural fairness could be provided to the applicants by disclosing the substance of some of the Confidential Material, even at a very general level. Having regard to the nature of that material, and the public interest reasons given in support of its non-disclosure, I decided that that was not an appropriate course.
I decided to admit the confidential evidence after having considered the probative value of the confidential evidence the Commissioner sought to tender; its prejudicial nature; the circumstance that denying a party procedural fairness is a grave step, which is not to be taken lightly; the principles and objects of the Firearms Act; and the relevance of the confidential evidence to the Tribunal's task. I have dealt with issues relating to the probative value of each part of the confidential evidence by the weight I have given it. The main reason I admitted the evidence is that my task, when conducting these administrative reviews, is to make decisions as to the public interest, and the material is relevant to those decisions.
More detailed reasons for my decision to admit the evidence are provided in my confidential reasons below.

Reasons concerning confidential material

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Conclusion

For the reasons given above, I consider that the issue of a licence to Mr Pendrick would be contrary to the public interest. I also consider, for those reasons, that the issue of a licence to Ms Pendrick would be contrary to the public interest.
Accordingly, I have decided to affirm the Commissioner's decision to refuse Mr Pendrick's application for a Category AB firearms licence and to affirm the Commissioner's decision to refuse Ms Pendrick's application for a Category AB firearms licence.

Orders

I make the following orders: 1. The requirement that each applicant's application for an extension of time be in writing is dispensed with. 2. The time for each of the applicants to lodge an application with the Tribunal is extended to 11 June 2021. 3. The respondent's decision to refuse the first applicant's application for a Category AB firearms licence is affirmed. 4. The respondent's decision to refuse the second applicant's application for a Category AB firearms licence is affirmed.

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: 25 January 2022

Administrative Decisions Tribunal Act 1997(NSW)

Administrative Decisions Tribunal Act 1997 (NSW)) Civil and Administrative Tribunal Act 2013(NSW)

Tribunals Amalgamation Act 2015(Cth)

(Administrative Decisions Review Act 1997(NSW)

(Civil and Administrative Tribunal Rules 2014(NSW)

ioner of Police [2021] NSWCATAD 157 HT v The Queen (2019) 269 CLR 403 Kioa v West (1985) 159 CLR 550 at 629 Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159; [2014] NSWCA 368 Leatham v Commissioner of Police [2021] NSWCATAD 121 Liu v Health Care Complaints Commission [2018] NSWSC 315 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Momcilovic v R (2011) 245 CLR 1 O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216, Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 36 FLR 482; 2 ALD 33 Re Kanina Banner Pty Ltd v Minister for Health and Ageing (2002) 35 AAR 29; 66 ALD 663 Saxby v Commissioner of Police [2021] NSWCATAD 275 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 Tukel v Commissioner of Police, NSW Police Force [2021] NSWCATAD 60 VBJ v Australian Prudential Regulation Authority [2005] AATA 642, 60 ATR 1013 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527 Wickham v Tiffney [2016] NSWCATAP 203 Category: Principal judgment 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: Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the Confidential Statement of Sergeant Nigel Turney dated 23 September 2021, and Annexure A to that statement, is prohibited.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (37)

Cited By (8)