Commissioner of Police, NSW Police Force v Esber (GD)

[2010] NSWADTAP 5

Appeal Panel - Internal

CITATION:	Commissioner of Police, NSW Police Force v Esber (GD) [2010] NSWADTAP 5
PARTIES:	APPELLANT Commissioner of Police, NSW Police Force RESPONDENT George John Esber
FILE NUMBER:	099051
HEARING DATES:	18 December 2009
DATE OF DECISION:	1 February 2010
BEFORE:	O'Connor K - DCJ (President); Isenberg N - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	Firearms Dealers Licence – Revocation in public interest because of a prescribed ‘offence of a sexual nature’ – Whether there was such a prescribed offence at relevant times – Tribunal held not – Appeal by Commissioner – Tribunal in error – Appeal allowed – Firearms Act 1996, s 11(5)(b), s 24 – Firearms Regulation 2006, cl 5(1)(d), cl 17
DECISION UNDER APPEAL:	Esber v Commissioner of Police, NSW Police Force [2009] NSWADT 208
FILE NUMBER UNDER APPEAL:	093049
DATE OF DECISION UNDER APPEAL:	08/07/2009
LEGISLATION CITED:	Crimes Act 1900 Crimes Amendment (Child Pornography) Act 2004 Crimes Amendment (Sexual Offences) Act 2008 Firearms Act 1996 Firearms Regulation 2006 Interpretation Act 1987 Summary Offences Act 1988
CASES CITED:	Bourke & Ors v The New South Wales Commissioner of Police [1998] ADT 1 Coleman v Shell Co of Australia Ltd (1945) 24 SR (NSW) 27 Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 Re a Solicitor’s Clerk [1957] 1 WLR 1219 Robertson v City of Nunawading [1973] VR 819
REPRESENTATION:	APPELLANT G Mahony, counsel RESPONDENT In person
ORDERS:	1. Appeal allowed. 2. Decision under appeal set aside. 3. Decision under review affirmed.

1 The respondent to this appeal, Mr Esber, held a firearms dealers licence continuously from 4 June 1986 until the Commissioner, as administrator under the Firearms Act 1996, revoked it on 18 November 2008. The Commissioner decided to revoke Mr Esber’s licence after learning that on 4 August 2005 he had been convicted under s 578B of the Crimes Act 1900 at Parramatta Local Court on five counts of possessing child pornography, fined $1000, and sentenced to 300 hours community service.

2 The licence held by Mr Esber at the time of his conviction had an expiry date of 30 June 2008. On 2 June 2008 he applied for renewal. He referred in answer to a question in the application form to the fact of the convictions. A new licence issued on 5 July 2008.

3 The Commissioner is entitled to revoke a licence (Firearms Act 1996, s 24) on various grounds. One is ‘for any reason for which the licensee would be required to be refused a licence of the same kind’ (s 24(2)(a)); another is ‘for any other reason prescribed by the regulation’ (d). The Firearms Regulation 2006, cl 17 gives as an additional reason, ‘if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence’.

4 In explanation of the decision to revoke, the Commissioner’s delegate advised that had the Commissioner been aware at the time of the renewal application that Mr Esber had been the subject of the conviction mentioned, the Commissioner would have been obliged to refuse to reissue the licence, as the Commissioner is required by the Act to refuse to reissue a licence if the applicant has been convicted within the previous 10 years of an offence of a sexual nature (s 11(5)(b); Firearms Regulation 2006, cl 5(1)(d)), listed as follows:

‘(d) Offences of a sexual nature

An offence of a sexual nature, being:

(i) an offence under Division 10 of Part 3 of the Crimes Act 1900, or

(ii) an offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence referred to in subparagraph (i), or

(iii) an offence under Division 15 or 15A of Part 3 of the Crimes Act 1900, or

(iv) an offence under section 11G of the Summary Offences Act 1988, or

(v) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence referred to in subparagraphs (i)–(iv), or

(vi) any other offence that, at the time it was committed, would have been an offence referred to in subparagraphs (i)–(iv), or

(vii) an offence of attempting to commit, threatening to commit or conspiring to commit an offence referred to in subparagraphs (i)–

(vi).’

5 On 15 January 2009 the internal reviewer affirmed the decision. The internal reviewer’s reasons noted that ‘due to a system anomaly’ the problem had not been picked up in the renewal process. The internal reviewer accepted that Mr Esber had dealt honestly with the Registry in disclosing the convictions. The reviewer said: ‘I accept that the erroneous issue of your licence was not your fault’. While the power to revoke is discretionary, the internal reviewer was satisfied for various reasons that the decision should stand. The reviewer’s reasons referred to the policy manifest in the mandatory refusal provisions and the nature, gravity and circumstances of the offences.

6 Mr Esber applied to the Tribunal for external review. By decision issued 7 August 2009, the Tribunal set aside the Commissioner’s decision, and restored the licence.

7 In its reasons for decision, the Tribunal rejected the Commissioner’s opinion that the law as it stood at the time Mr Esber applied for renewal, and as it stood at the time when it was revoked, included a provision that prescribed a conviction for child pornography as a mandatory refusal ground. The Tribunal therefore rejected that as a relevant public interest consideration.

8 As to the other consideration upon which the internal reviewer relied – the nature , gravity and circumstances of the offences – the Tribunal considered that they were not as significant as the internal reviewer thought, having regard to the licensing context. The Tribunal noted that a firearms dealer could only deal with adult persons (persons over 18) so there was not likely to be any occasion for the dealer to have any interaction with children. Consequently offences of the present kind did not, it considered, justify removal of the licence.

The Commissioner’s Appeal

9 The Commissioner’s appeal goes to the Tribunal’s conclusion that the law at the relevant times did not require the Commissioner to refuse a licence where an applicant had been convicted of the kind of offences of which Mr Esber had been convicted.

10 The crucial paragraph in the Tribunal’s reasons is para [30]: emphasis added.

‘30 The Commissioner submitted that a conviction for an offence under s 578B would have been an offence referred to in subparagraph (vi), being an offence that, at the time it was committed, would have been an offence referred to in subparagraphs (i)–(iv) (specifically s 91H of the Crimes Act 1900 – Production, dissemination or possession of child pornography.) The difficulty with this proposition is that at the times when Mr Esber’s firearms dealer licence expired, when he re-applied for the licence, when the licence was issued, and when it was subsequently revoked, s 91H of the Crimes Act 1900 did not exist. It commenced on 1 January 2009 following amendments by the Crimes Amendment (Sexual Offences) Act 2008. Additionally, it was not prescribed an offence under cl. 5(d)(iii). Offences against Division 15A of Part 3 of the Crimes Act 1900 were only prescribed following the amendment to the Firearms Regulation 2006 by the Crimes Amendment (Sexual Offences) Act 2008, which also had effect from 1 January 2009. ’

11 In our view the submissions of Ms Mahony of counsel for the Commissioner on this point are correct.

12 One, the Crimes Amendment (Child Pornography) Act 2004, No 95 replaced s 578B with s 91H (since amended): Sched 1[4] (new s 91H) and 1[5] (repeal of s 578B). The date of commencement of these amendments was 1 January 2005, see Govt Gaz No 200 of 17.12.2004, p 9303. (Mr Esber was charged under s 578B and not s 91H because the conduct over which he was charged occurred in 2004.)

13 There was not, contrary to the Tribunal’s analysis, a situation where there was a hiatus in the firearms legislation prescription of child pornography offences as mandatory grounds for refusal, due to there not being in force a provision equivalent to s 578B.

Comparison of s 91H and the now repealed s 578B

14 The question then becomes whether an offence under s 578B(2) ‘would have been an offence’ of the kind to which the present prescription refers, in this instance an offence under Part 3, Division 15A of the Crimes Act: see cl 5(1)(d)(vi) and subparagraph (iii).

15 The old s 578B of the Crimes Act provided:

‘ 578B Possession of child pornography

(1) In this section:

child pornography means a film, publication or computer game classified RC, or an unclassified film, publication or computer game that would, if classified, be classified RC, on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.

…

(2) A person who has in his or her possession any child pornography is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 2 years (or both).’

16 On 18 November 2008 (the date of revocation), the new s 91H provided:

‘91H Production, dissemination or possession of child pornography

(1) Definitions

In this section:

child pornography means material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child:

(a) engaged in sexual activity, or

(b) in a sexual context, or

(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

…

(3) Possession of child pornography

A person who has child pornography in his or her possession is guilty of an offence.

Maximum penalty: imprisonment for 5 years.’

17 In her submissions Ms Mahony compared precisely the terms of the old s 578B and the new s 91H. We will not repeat them in detail here. In our view, the differences between the two provisions are marginal. As she noted in her submissions, the primary difference between the two provisions is that s 578B did not split the offence into material that described or depicted the child as being engaged in ‘sexual activity’ or in a ‘sexual context’ but, rather required the offending material to be classified RC [i.e. ‘Refused Classification’ under the Commonwealth censorship system] (if it was not already classified). In the second reading speech, the Minister explained that the purpose of this de-linking of the offence provision from the classification system was to allow courts to make their determination as to whether material is or is not child pornography (Hansard, 11 November 2004, p 12738).

18 Two, we are satisfied that the current child pornography offence, contained in s 91H of the Crimes Act 1900 in Division 15A of Part 3 is the successor provision to s 578B. The Minister clearly stated in the second reading speech that the “new offences contained in that section [s 91H], entitled production, dissemination or possession of child pornography were previously covered by sections 578B and 578C.”

Accrued Rights

19 The Tribunal gave considerable attention in its reasons to the principles relating to the interpretation of laws which might be seen as impacting on an accrued right, such as the right a regulated commercial business is given to operate by its licence, and referred to s 30 of the Interpretation Act 1987. The Tribunal’s consideration of this issue derived from its conclusion that s 91H took effect after the date of revocation. In light of our conclusion, it is unnecessary to consider in any detail that part of the Tribunal’s reasoning, as it depended on a premise that was incorrect.

20 We simply observe that it is clear that Parliament may make laws that take into account ‘antecedent facts and circumstances as a basis for what it prescribes for the future, and … does no more than that’: Robertson v City of Nunawading [1973] VR 819 at 824; see also Coleman v Shell Co of Australia Ltd (1945) 24 SR (NSW) 27 at 31, Jordan CJ; and Re a Solicitor’s Clerk [1957] 1 WLR 1219 at 1222-23; in a commercial fishing licensing context, La Macchia v Minister for Primary Industry (1986) 72 ALR 23; and Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at 309 per McHugh and Gummow JJ. The firearms licensing legislation in its prescription of mandatory grounds for disqualification based on past events such as convictions for certain kinds of serious offences is an example of this type. See further, Pearce and Geddes, Statutory Interpretation in Australia (6th ed. 2006), ch 10. In this Tribunal, see also Bourke & Ors v The New South Wales Commissioner of Police [1998] ADT 1.

Disposal

21 While the notice of appeal was expressed as being on a question of law only, the appeal was conducted by the Commissioner on the basis that if the Commissioner’s submission was right the Appeal Panel should not remit the matter to the Tribunal for further consideration, but enter an order setting aside the Tribunal’s decision and affirming the Commissioner’s decision.

22 While the Commissioner’s power to revoke is discretionary, we accept that a strong public interest consideration favouring exercise of the discretion is rectification of an oversight in not exercising the mandatory refusal power in the course of the renewal process.

23 Mr Esber appeared at hearing without legal representation. We asked him about his present business circumstances. He advised us that he used to have business premises in Gulgong, but that since moving to Sydney in 1992 he had only been engaged in a small level of activity as a dealer. He had been thinking, he said, of opening a firearms shop again. At present his main income was derived from a café business.

24 In our view, there is nothing to be achieved by referring this matter back to the Tribunal.

25 There is a strong public interest in seeing that the legislative policy reflected in the mandatory disqualification provisions is upheld. We accept, like the Commissioner has, that Mr Esber dealt honestly with the Firearms Registry, in referring to his convictions in his renewal application. In this case, there are no competing considerations, personal to Mr Esber’s business and financial situation, to suggest that the public interest to which we have referred should not be upheld.

26 We agree with the Commissioner’s submission that it would not be constructive to remit the matter for further consideration.