The Applicant accepts that all of the issues that the Respondent has presented are of a serious nature. He said that he accepts responsibility for his actions and apologised for his conduct.
The Applicant has provided a number of glowing references that attest to his outstanding contribution to Australian society. He is clearly highly regarded by all those who provided references. Some of those references were not provided specifically in relation to this application but rather in support of an honorary doctorate in health sciences by the University of Sydney.
In a reference provided by Mr Andrew Smith for the purposes of these proceedings, Mr Smith identified the following achievements:
Amongst other things, I know the following:
1, Ken served in the Australian Army Reserves for eight (8) years, including serving as an Artillery Crew Commander and Defence Force Career Adviser for the Australian Defence Force, specifically in the areas of Indigenous Recruitment and Career Development Program;
2, Ken, along with others, organised the Coloured Digger event on ANZAC Day this year, which event was attended by, amongst others, the Governor of New South Wales and various Federal and State politicians;
3, Ken is the founder of Gamarada Aboriginal Social and Emotional Wellbeing Project, which he co-designed and has been conducting for a number of years. In that work, Ken works with some of the hardest to help and most adversely afflicted by dispossession and inter-generational trauma. The significance and importance of that work cannot be overstated. It is also my understanding that by reason of Ken's work in respect of, amongst other things, indigenous mental health, he has been awarded an honorary doctorate in health sciences by the University of Sydney;
4. Ken provides training in trauma informed care to approximately 160 Magistrates of the Local Court of New South Wales at conferences of the Local Court of New South Wales conducted by the Judicial Commission of New South Wales; and
5. Ken also provides training to psychologists in the Sydney Area Health Services in respect of culture and wellbeing.
Mr Smith referred to the issues that have been raised by the Respondent but essentially focused on the Applicant's contribution to society. Mr Smith stated that he does not share the opinion of the Commissioner that it is not in the public interest to enable the Applicant to hold a pistol licence. Similarly, the remaining references that were provided in relation to this application focused on the Applicant's contribution to society.
The Applicant said that his failure to disclose the use of other names was purely an oversight and that it was remiss of him to overlook it. He said that he has nothing to hide in relation to the previous name and that he had provided a birth certificate that discloses the name to the firearms registry.
In relation to his delay in returning his licence after it was revoked, he explained that he doesn't check his mailbox regularly. The COPS entry records that when the Applicant returned the licence, he had indicated that he had received the notice three weeks earlier. However, before the Tribunal, the Applicant said that he acted promptly after he received the notification.
The Applicant does not dispute the details of his driving record. However, he said that he has never lost his licence and that he is not a reckless driver. He noted that most of the infringements were for exceeding the speed-limit by less than 10 km/h. He submitted that he has held a licence for thirty years and that he has averaged less than one infringement per year over that time.
He apologised for the breach of the COVID public health order and said that he takes responsibility for his actions. The relevant conduct was in the first week of lockdown, at a time when the public health orders were changing, and he said that that it was not clear that his conduct was in breach. He said that he was sunbaking less than five minutes' walk from his residence. He was advised that it was permissible to walk in the sun but not permissible to be sunbaking. When he was cautioned, he ceased that conduct and has not repeated it.
In relation to the allegations that were raised by his former partners, the Applicant provided context to the complaints by explaining events leading to the incidents. He denied the harassment claim. He asserted that the complainant has mental health issues. He said that in fact the complainant had violent towards him but that he had not reported it. He did not dispute the allegation that he had sent a threatening email but explained that it was sent in circumstances where he had been at a night club drinking, and he accepted that he had been irresponsible.
In relation to the 2013 allegation of stalking and intimidation the Applicant said that the complainant had acted out of spite rather than fear. He accepted that he had made the mistake of being nostalgic and thinking that the relationship could be started again. He denied the 2014 allegations of threats, harassment, and intimidation. He accepted that there is a pattern of bad relationship choices which have led to problems and failed relationships.
[2]
Discussion
This is a matter in which the Applicant is clearly well regarded by those who provided references on his behalf. However, there is no indication that most of those referees were familiar with all of the details of the issues raised by the Respondent. Nevertheless, in these proceedings the issue concerns the public interest and specifically whether it is not in the public interest for the Applicant to continue to hold a licence.
The Respondent has raised a number of issues of concern. I have considered each of those issues and I have formed the view that the decision under review should be affirmed.
I accept the explanations that the Applicant has given in regard to the breach of the COVID public health order and the delay in returning his licence after it was revoked. In the circumstances I do not consider that these issues impact significantly on the issue to be determined.
However, the allegations in regard to his domestic relationships have the potential to be of greater concern. While the Applicant has provided a plausible explanation in relation to each of the incidents and no further action was ever taken, the allegations suggest a pattern of conduct which was noteworthy. The Applicant has explained this pattern as reflecting a pattern of bad relationship choices. As I have noted above, no evidence was given by any of the complainants. There is therefore no evidence to contradict that given by the Applicant.
The Applicant's driving record is also noteworthy. As has often been noted in decisions of this Tribunal, both the traffic laws and the firearms provisions are designed with the aim of ensuring public safety. I agree with the Respondent that the Applicant's driving record suggests a lack of responsibility in adherence to the law and a disregard for public safety. I note that since 2018 only a single infringement has been recorded. This may suggest that the Applicant has taken responsibility for his behaviour and changed his driving habits.
Of great significance in my view, is the Applicant's failure to provide accurate information in his licence application. It is implausible that the Applicant would not have been aware that he had previously been known by a different name. It is also implausible that he would not have been aware that he had previously held a licence.
The Applicant conceded that he did not declare those facts, but he said that it had been overlooked. If that is accepted, it leads to the inevitable conclusion that the Applicant did not regard the application as a significant document. He could not have appreciated the importance of providing accurate information in a licence application. If the correct information had been provided, the Respondent would have had the opportunity to undertake a more thorough consideration of the Applicant's circumstances. This may or may not have led to a different decision in regard to the application but the Respondent was not alerted to issues that were relevant to the decision making process. This is a significance consideration in the circumstances of this matter.
In the circumstances of this matter, the Applicant's failure to provide the correct information is to be given significant weight.
As Senior Member Scahill observed in Bladen v Commissioner of Police, New South Wales Police Force
"[T]he system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act.
That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular …"
In my view, the Applicant's failure to provide true and correct information in his licence application indicates that at this time he does not have the requisite knowledge of the firearms legislation and the obligations imposed on a licensee. For this reason, I am not satisfied that there is virtually no risk to the public in the Applicant having access to firearms.
In these circumstances, the correct and preferable decision is to affirm the Respondent's decision.
[3]
Order
The decision under review 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: 23 January 2023
Parties
Applicant/Plaintiff:
Zulumovski
Respondent/Defendant:
Commissioner of Police, NSW Police Force
Cases Cited (19)
Introduction
This is an application for review of a decision by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner") under the Firearms Act 1996 ("the Act"). The Respondent's decision was to revoke the probationary pistol licence held by Mr Ken Zulumovski ("the Applicant"). The Applicant was first issued a licence in July 2020 to expire in July 2021. He held the current licence until it was revoked in September 2020.
The Applicant held the licence for the genuine reason of Sport/Target Shooting and it was supported by club membership with the Parramatta Pistol & Shooting Club.
The decision to revoke the licence was affirmed on internal review. The Internal review reasons stated:
In arriving at my decision in this matter I have considered the issues raised by you and I have examined the records available to the NSW Police Force including, but not limited to, the following:
That you have previously been known by a number of other names, including Ken NEWLIN;
That you failed to declare being known by any other name on your firearms licence application. You later provided a copy of identification documents including a birth certificate which provided information of your previous names;
That issues arising from your previous names served to obfuscate some of the NSW Police Force holdings until after your licence had been issued.
…
In making a determination on this matter, I have considered the fact that you have not been charged with a criminal offence. However, available information reflects that on a number of occasions police attention has been drawn to allegations of your inappropriate behaviour.
...
Considering the information before me … has led me to conclude that it is not in the public interest for you to continue to hold a licence.
The Applicant has applied to the Tribunal for external review of the revocation decision.
As noted, the Applicant's licence was to expire in July 2021 so it would have expired by now if it had not been revoked. A successful application will not lead to the reinstatement of his licence. This point was recently considered by Senior Member Isenberg in Beleski v Commissioner of Police, NSW Police Force [2022] NSWCATAD 397. She stated at paragraph [59]:
The Applicant's licence expired on 29 November 2022, that is, before the matter could be heard. Neither the Respondent, nor the Tribunal on review, has power to reissue an expired licence: Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12]. The practical effect of this decision then is that the Applicant, if he seeks a firearms licence, will need to make a fresh application. ...
Relevant legislation
The general principles are set out in section 3 of the Act, relevantly:
3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
…
(2) The objects of this Act are as follows:
…
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
Section 75 of the Act provides for the review by the Tribunal of a decision to refuse an application for a firearms licence under the Act.
Section 63 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought by either party. The Tribunal is not restricted to the consideration of the material that was before the Respondent but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. There is no presumption that the Respondent's decision is correct.
Section 24:
Revocation of licence
…
(2) A licence may be revoked -
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
…
(d) for any other reason prescribed by the regulations.
The public interest
The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:
The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:
"The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [23] Deputy President Hennessy stated:
"There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] - [28] Deputy President Hennessy said that in terms of public safety:
"27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
Ward v Commissioner of Police dealt with the issue of whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at paragraphs [64] - [66].
The orders under section 49 and 64 of the Tribunal Act
The principles involved in relation to the conduct of hearings are well established. As is clear from section 49(1) of the Tribunal Act that a Tribunal hearing is to be open to the public unless the Tribunal orders otherwise. Section 49(2) provides for an exception to the general rule.
Senior Member Lucy considered this provision in Grant v Commissioner of Police [2020] NSWCATAD 158, and she stated at paragraphs [18] - [20]:
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)).
20. 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 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."
Senior Member Lucy also explained her reasoning for departing from the general rule that a hearing by the Tribunal is to be open:
21. In this case, I was satisfied that it was desirable to make an order for a private hearing in relation to the confidential evidence under s 49(2) and to make non-publication and non-disclosure orders under s 64(1)(c) and (d) of the NCAT Act (as set out on the cover page of this decision). This was because (as the respondent's representative said in the open part of the hearing), the evidence revealed the identity of informants, related to current criminal investigations and was otherwise confidential. Further, the proceedings concerned issues of public safety. I considered that the Tribunal should be as well informed as possible when determining an application which may directly affect public safety.
Domestic related incidents
As noted above, the section 58 documents contain a number of COPs records of allegations made in regard to the Applicant's conduct in dealing with ex-partners. In October 2013 police received a complaint regarding an email that the Applicant had sent to an ex-partner. The email contained comments that the complainant believed to be a threat of violence. The complainant subsequently received a further email from the Applicant in which he threatened legal action.
In September 2014 police received a complaint regarding alleged stalking, intimidation, and harassing behaviour by the Applicant. The complainant, who was an ex-partner, also alleged that the Applicant had previously been verbally abusive.
A complainant informed police that she had been in a domestic relationship with the Applicant in 2011 and 2012 and that during that time the Applicant was physically, verbally and emotionally abusive towards her.
It was alleged that in December 2012 the Applicant rang the workplace of an ex-partner who had told him not to contact her. He pretended to be the ex-partner's father so that he could be connected to the complainant. When she realised it was the Applicant, she terminated the phone call, and she reported the incident to police. The police contacted the Applicant to tell him to stop contacting the ex-partner.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The Respondent accepts that the Applicant has not been charged with any offences in relation to his domestic relationships. The Respondent also notes that the Applicant has denied some of these allegations. None of the complainants have given evidence so the Applicant has not had the opportunity to test the allegations or the COPS record of the allegations.
The Respondent submits that the Applicant's domestic circumstances are a relevant consideration. Mr Mattson referred to the observation made by the Tribunal in Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156 at paragraph [56]:
Firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.
Disregard for public safety and decency
The Respondent contends that the Applicant showed disregard for public safety in two respects. Firstly, he breached COVID public health orders in April 2020, and secondly in his traffic violations - mostly speeding offences. As noted, the Applicant has an extensive traffic history of traffic infringements. The Respondent contends that this record demonstrates that the Applicant has not learnt to behave in a safe manner.
In relation to the Applicant's history of traffic infringements, the Respondent referred to the views that I expressed in O'Brien v Commissioner of Police [2022] NSWCATAD 259 from paragraph [59]
59 I have referred to a number of decisions of this Tribunal which have dealt with similar issues. I agree with the Applicant that none of those cases have facts that are identical to this matter. However, it has been widely accepted that while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance. In that regard I do not agree with the Applicant's submission that it is unfair to compare a lack of compliance with traffic laws and the likelihood that he might adopt a similar view towards compliance with firearm legislation.
60 Nevertheless, I agree with the Applicant that his most recent past conduct should be given greater weight than earlier behaviour if it suggests a change of attitude. I note the Applicant's evidence of his strict compliance with legislation applicable to his work as well as the regulations and site-based policies and procedures. This provides a clear contrast to the extensive history of traffic infringements.
61 The immediate difficulty that this history of traffic infringements poses is that it has continued over a very long period. The offences commenced while he was still on his Learners Permit in 1994 and the most recent infringements were in May 2021.
62 The fact that no infringements have been recorded for the past year may reflect the Applicant's evidence that he learned a valuable lesson, took responsibility for his behaviour, and committed to turning his life around.
63 I also note the Applicant's evidence that he has a stable family environment and that he has been a model employee who has always been in full employment. In the circumstances there are good reasons to be hopeful that he would adopt a responsible attitude to firearms if he were to be given the opportunity of holding a licence.
64 Nevertheless, I remain concerned that the progress he has made has been over a relatively short period.
65 In my view, the Applicant should not be allowed to hold a licence until he is able to satisfy the Commissioner that he has sufficient knowledge and understanding of his obligations regarding becoming a safe, responsible firearms user.
Clause 20 of the Firearms Regulation 2017 ("the Regulations") provides that the Commissioner 'may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence'.
Section 70 of the Act provides:
70 False or misleading applications
A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.
Maximum penalty - imprisonment for 14 years if the application relates to a pistol or prohibited firearm, or imprisonment for 5 years in any other case.
In relation to the provision of false and misleading information, in Kogias v Commissioner of Police [2020] NSWCATAD 297, Senior Member Walker stated from paragraph [101]
101. Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standards will not be granted a licence or permit: Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53]. One of the expressed objects of the Firearms Act is "to establish an integrated licensing and registration scheme for all firearms": s 3(2)(b).
102. Specifically in the context of firearms licensing, the tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], that "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular…."
103. The most current matter of concern is the applicant's submission of false information in his licence application by answering "No" to the question whether he had had a licence revoked or refused. Also relevant is his answering "No" to a similar question in a P650 form, but the application is the principal concern.
…
114. The functioning of a proper system of firearms licensing is one of the stated objectives of the Firearms Act, which depends on applicants providing true and correct information in a comprehensible manner. That is the reasoning behind s 70. It is nothing to the point to claim that the registry already has access to information about prior revocations or refusals. Locating it might require the registry to conduct an investigation into the license history of every applicant, whereas it should be able to rely on the veracity of persons having dealings with it in determining whether to give an application closer attention. ...
In determining this issue, it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].
The Respondent has lodged a bundle of documents pursuant to section 58 of the ADR Act. Section 58(1)(b) of the ADR Act requires the administrator whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application, a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal.
Section 59 of the ADR Act provides:
59 Objections to lodgment
(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58(1) for an order that the administrator not be required to lodge a copy of a document under section 58.
(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:
(a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or
(b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
The Respondent applied to the Tribunal for an order under section 59(1) of the ADR Act that it not be required to lodge a copy of certain documents ("the Confidential Material") with the Tribunal and for orders under sections 49 and 64 of the Civil and Administrative Tribunal Act 2013 ("the Tribunal Act").
Section 49 of the of the Tribunal Act provides:
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.
Section 64 of the of the Tribunal 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 -
(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.
(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.
(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).
(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
The Respondent's application came before me for hearing on 13 October 2022. The Respondent relies on the open and confidential evidence of Mr Andrew James.
Senior Member Lucy gave further consideration to these provisions in Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27. At paragraphs [40] to [48] she discussed the orders sought and she stated:
40. The Commissioner seeks an order under s 49 of the NCAT Act that the hearing of the Commissioner's application be conducted in the absence of the applicants, their legal representative and the public. The Commissioner also seeks orders, under s 64(1)(b) and (c) of the NCAT Act, that the publication and reporting of the hearing of this application, including any evidence given during the hearing, is prohibited. As I have determined to dispense with a hearing of the application, those orders are unnecessary and I decline to make them.
41. The Commissioner has applied for an order, pursuant to s 64(1)(c) of the NCAT Act, that the publication of the Confidential Material and the Confidential Affidavit, or of matters contained in the Confidential Material and the Confidential Affidavit, is prohibited.
42. The Commissioner has also applied for an order, under s 64(1)(d) of the NCAT Act, that the disclosure of the Confidential Material and the Confidential Affidavit, or of matters contained in the Confidential Material and the Confidential Affidavit, is restricted to the Commissioner, the legal representatives for the Commissioner, and the Tribunal.
43. Subsections 64(1)(c) and (d) of the NCAT Act apply to "evidence given before the Tribunal," and "matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal." The Tribunal has not yet decided what to receive in evidence in the substantive application.
44. The Confidential Material (or matters therein) is probably captured by the expression "matters contained in documents lodged with the Tribunal" in s 64(1)(c). The Confidential Material was itself lodged confidentially with the Tribunal for the purposes of determining the Commissioner's applications (including the application under s 59 of the Administrative Decisions Review Act relieving the Commissioner from an obligation to lodge that material). It may best be characterised as having been lodged with the Tribunal on a provisional or temporary basis, for the purposes of the s 59 application.
45. The Confidential Affidavit is evidence lodged in support of the Commissioner's applications.
46. It is desirable to make orders under s 64(1)(c) and (d) of the NCAT Act prohibiting the disclosure to the applicants and the publication of the Confidential Affidavit. That is desirable because the Confidential Affidavit was filed on a confidential basis in support of the s 59 order, in accordance with the Tribunal's directions. If that affidavit were to be published or made available to the applicants, administrators would be deterred from making similar applications in future. It is desirable that administrators are not discouraged from making applications for non-disclosure, non-publication or non-production orders which they consider to be appropriate and that the supporting evidence remain confidential, irrespective of the outcome of the application.
47. To the extent that the application seeks to prohibit the disclosure of evidence in the substantive application to the applicant and to the public, it is premature. The order sought under s 64(1)(d) of the NCAT Act, precluding the applicants from having access to the Confidential Material, may impact significantly on the Tribunal's obligation to provide the applicants with procedural fairness (NCAT Act, s 38(2)). The Commissioner has submitted that any denial of procedural fairness that would arise from the making of orders under s 64(1) of the NCAT Act "is no reason to avoid making such orders," because s 64(1)(d) "implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 at [24]." That is to misstate the position.
48. It may be acknowledged that the making of an order under s 64(1)(d) of the NCAT Act would generally involve a denial of procedural fairness. For that reason, the Tribunal should carefully consider the requirements of procedural fairness, and the impact on an affected party of a denial of procedural fairness, when determining to make an order under that provision. Whether it is "desirable" to make an order under s 64(1) is to be determined with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], Grant v Commissioner of Police [2020] NSWCATAD 158 at [19]). Whilst the Tribunal has power to make an order under s 64(1)(d) of the NCAT Act which would have the effect of denying a party procedural fairness, "the fundamental principles of open justice and procedural fairness should not readily be displaced" (Bettington v Commissioner of Police [2021] NSWCATAP 110 at [41]).
At paragraph [128] she stated:
128. 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 v The Queen [2019] HCA 40] 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]).
Similar considerations are applicable in this matter.
For an order to be made under section 49(2) or section 64 of the Tribunal Act, the Tribunal is to be satisfied that it is desirable to do so. This requires that the circumstances should be 'special' or 'out of the ordinary'. They need not be 'exceptional': see the views of the Appeal Panel in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at paragraphs [81] - [82]. Having reviewed the Confidential Material, I was satisfied that the circumstances of this case are sufficiently special that the making of the orders sought is "desirable".
I was satisfied that it was desirable to make an order for a private hearing under section 49(2) of the Tribunal Act to allow consideration of the Confidential Material in order to determine the Respondent's application. This was because of the nature of the Confidential Material. As was the case in Pendrick v Commissioner of Police, the Confidential Material was provided to the Tribunal on a confidential basis for the purposes of determining the Respondent's section 59 application. The confidential evidence was lodged in support of the Respondent's applications. In my view, the circumstances are 'special' or 'out of the ordinary'.
I made an order under section 49 of the Tribunal Act. As a result, the hearing was conducted partly open to the public in the presence of the Applicant and partly in the absence of the Applicants and the public ("the Private Hearing").
At the conclusion of the Private Hearing, I made the orders under section 59 of the ADR Act and 64 of the Tribunal Act. I made the following orders:
1 Pursuant to section 49 of the Civil and Administrative Tribunal Act 2013, the hearing of part of this application is to be conducted in the absence of the Applicant, the legal representatives of the Applicant, and the public ("Private Hearing").
2 Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 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.
3 Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 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, legal representatives for the Commissioner and the Tribunal.
4 Pursuant to ss. 64(1)(b) and 64(1 )(c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the hearing of this application, including any evidence given during the bearing. Is prohibited.
The Respondent also referred to the views expressed by Senior Member Nicholls in Khan v Commissioner of Police [2022] NSWCATAD 20, from paragraph [46]:
46 The respondent put the applicant's traffic record before the Tribunal. This reveals that between 2004 and 2021 the applicant had 15 traffic infringements. This record of infringements included 13 speeding offences, an 'extreme speed offence' in 2009 which resulted in a six months' suspension of his driving licence 'on the grounds of not a fit and proper person in view of recorded offences..', and twice using a mobile phone while driving. (Respondent's Exhibit 6).
…
93 Ninth, the matter of the traffic infringements and the applicant's relevant presentation before the Tribunal gives rise to similar concerns as those set out immediately above. The applicant has a substantial traffic record. His approach before the Tribunal was in part to seek to shift responsibility to others. Given the evidence, and as set out above, this was unsuccessful.
94 But even if other persons were responsible for some of the offences, which on the evidence as set out above I do not accept, the applicant as director of UCC should have taken steps to ensure a proper system of record keeping to be able to identify the driver of any of the vehicles. After all, on the applicant's own evidence, these were high end expensive cars which would have incurred significant cost for any repairs if they had been damaged. At the very least, once the applicant, on his account, had received the first infringement notice which he now claims was the fault of another driver he should at that point instigated a proper records keeping system. That would have been the responsible thing to do.
95 Further, and in another sense, it does not matter whether the driver on those occasions was the applicant or someone else. On the evidence the vehicles involved were high performance vehicles which if driven at speed on public roads would pose a significant risk to public safety. There is no satisfactory evidence to indicate that the applicant instituted any control over the use of the luxury cars to ensure safety while driven by club members. It is not an exaggeration to say that any vehicle driven at speed, let alone a high performance vehicle, is a dangerous weapon. I use that word advisedly. As is said 'speed kills', so too a firearm in inappropriate hands.
96 I agree with the respondent's submissions that repeated breaches of traffic laws over a long period of time, as in the applicant's case, are relevant to the disposition of the current matter. Both the traffic laws and the firearms provisions are directly concerned with the aim of ensuring public safety. The applicant's conduct is such that it displays ongoing recklessness and a failure to accept responsibility consistent with a proper regard for public safety.
97 In his affidavit of 13 October 2021 (at 16]) the applicant stated that if the application for the firearms licence is refused this would:…adversely affect me emotionally, and mentally, particularly given the current climate of COVID-19 (and the restrictions that have and continue to be in place in NSW. This is repeated in his subsequent affidavit of 16 November 2021 (at [5]), and in 1AS (at [40]).
98 I accept that the applicant would be greatly disappointed if the licence refusal were to be maintained, and this may even cause emotional turmoil. However on the applicant's evidence his interest in pistol shooting is recently acquired. His evidence is that for him this is a 'recreational' activity. (See the applicant's affidavit of 13 October 2021 at [16]). This is not a case, for example, where the firearm licence is required for any occupational or professional use.
99 Given the unambiguous and clear emphasis in the Act on public safety and the understanding that the issuing of a firearm licence is a privilege and not a right, there is nothing in the circumstances presented to argue that the applicant's personal interest should outweigh the public interest.
CONCLUSION.
100 In all therefore, rather than to accept responsibility for his part in the domestic incidents, his indifference to public safety in repeatedly beaching traffic laws, and for his failure to appropriately and responsibly ensure the imposition of proper monitoring systems in relation to the car club operation, the applicant elected to apportion blame on to others, deny any wrong doing unless confronted with evidence to the contrary, and failed to display any real understanding, or insight, of the importance of accepting responsibility for his own conduct when it is appropriate to do so.
101 It is this failure to genuinely accept responsibility that renders the applicant unfit to hold a firearms licence. It reveals that the public interest is best served by reserving the privilege to hold a firearm licence to those who have insight into their own conduct and character and who are able, let alone prepared, to act responsibly with what are after all dangerous weapons.
102 In all the circumstances therefore the correct and preferable decision is to affirm the Commissioner's decision to refuse to issue the firearms licence to the applicant.
The Respondent submits that a similar approach should be adopted in this matter.
The Respondent submits that in the circumstances it is not in the public interest that the Applicant hold a firearms licence. Based on all of the above matters, the correct and preferable decision is to affirm the decision to revoke the Applicant's licence.