DP v Commissioner of Police, New South Wales Police

[2007] NSWADT 277

CITATION:	DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277
DIVISION:	General Division
PARTIES:	APPLICANT DP RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	073200
HEARING DATES:	15 August 2007
SUBMISSIONS CLOSED:	14 September 2007
DATE OF DECISION:	28 November 2007
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decision Tribunal Act 1997 Commercial Agents and Private Inquiry Agents Act 2004 Crimes (Sentencing and Procedure) Act 1999 Criminal Records Act 1991 Firearms Act 1996 Firearms Regulation 2006 Security Industry Act 1997 Spent Convictions Act 2000 (ACT)
CASES CITED:	Bazouni & ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Commissioner of Police, New South Wales Police Service v Mercer [2005] NSWADTAP 55 Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 Mahabir v Commissioner of Police, New South Wales Police Service [2006] NSWADT 358 Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153 Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 Pearce v Commissioner of Police, NSW Police Service [2000] NSWADT99 Re Williamson and Registrar of Firearms (2001) 64 ALD 245 Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT
REPRESENTATION:	N Allan, counsel C Weiss, agent
ORDERS:	1.Under section 75(2)(b)(i) of the Administrative Decision Tribunal Act 1997 the Tribunal orders that the disclosure of the Applicants’ name and address or any other material that identifies, or may lead to the identification of, the Applicant is prohibited; 2.The decision of the Commissioner of Police made on 25 May 2007 to revoke DP’s Category AB firearms licence is affirmed.

Background

1 DP has been the holder of a Category AB firearms licence under the Firearms Act 1996 (the FA Act) since 30 November 2000. As a result of circumstances which occurred at his Penrith work place, on 21 December 2006, DP was charged, as the holder of a Category AB firearms licence, with not having a firearm in approved storage. The Local Court, on 15 January 2007, convicted and fined him $550. He lodged a severity appeal. On 13 February 2007 the District Court heard that appeal. Without proceeding to conviction the Court dismissed the charge under section 10(1)(a) of the Crimes (Sentencing and Procedure) Act 1999 ( the SP Act). To make an order under that section the Court was satisfied that the offence was proved.

2 The Commissioner of Police is the Administrator responsible for the administration of the FA Act. On 14 March 2007 the Administrator revoked DP’s firearms licence as a result of the Courts finding the offence proved.

3 DP sought an internal review of that decision and made submissions to that review. On 28 May 2007 an internal review officer affirmed the decision to revoke DP’s firearms licence. In so doing, the Administrator found that the circumstances which led to DP being charged with the offence “placed public safety at significant risk.” The decision was affirmed on public interest grounds (section 24(2)(d) of the FA Act and clause 19 of the Firearms Regulation 2006).

4 On 27 June 2007 DP lodged an appeal against that decision seeking to have it reviewed in this Tribunal. The Tribunal in reviewing the matter stands in the shoes of the Administrator and is required to make the correct and preferable decision on the material before it, in accordance with the law: section 63 Administrative Decision Tribunal Act 1997.

5 A hearing took place on 15 August 2007 at which I heard sworn evidence from DP together with oral submission. The Administrator maintained that the Tribunal should affirm the decision on public interest grounds.

6 During that hearing an issue arose as to whether or not the Administrator, and the Tribunal on review, was entitled to take into account the circumstances which led to DP being charged with the offence under section 40 of the FA Act, in making an assessment of whether his continuing to hold a firearms licence was in the public interest or not. This arose because the dismissal of the charge without conviction by the District Court, resulted in the Court’s finding that the offence was proved being spent immediately after that finding was made: section 8(2) Criminal Records Act 1991 (the CR Act); see also the discussion in Mahabir v Commissioner of Police, New South Wales Police Service [2006] NSWADT 358

7 The parties have since made written submissions with respect to those issues.

The Legislation

8 The objects of the CR Act are set out in section 3:

“(1) The primary object of this Act is to implement a scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history.

(2) The Act also provides for the effect of the quashing of a conviction and the pardoning of an offence.”

9 “Conviction” is defined by section 4:

“ conviction means a conviction, whether summary or on indictment, for an offence and includes a finding or order which, under section 5, is treated as a conviction for the purposes of this Act.”
Section 5, in turn, provides:
“The following findings or orders of a court are treated as convictions for the purposes of this Act:

(a) a finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction,

(b) a finding that an offence has been proved, or that a person is guilty of an offence, and the discharging of, or the making of an order releasing, the offender conditionally on entering into a recognizance to be of good behaviour for a specified period or on other conditions determined by the court,

(c) in the case of the Children’s Court, an order under section 33 of the Children (Criminal Proceedings) Act 1987, other than an order dismissing a charge.”

10 Section 7 provides that all convictions of an individual person are capable of being spent, apart from those for sexual offences, convictions resulting in a prison sentence of more than 6 months, and those prescribed by the Regulation. Convictions for offences under the Firearms Act 1996 are not so prescribed.

11 Section 8 sets out when convictions are spent. Relevantly, it provides:

“(1) A conviction is spent on completion of the relevant crime-free period, except as provided by this section.

(2) A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made.”

12 Section 4 also contains an inclusory definition of spent conviction:

“(2) In this Act, a reference to a spent conviction includes a reference to:
(a) the charge to which the spent conviction relates, and

(b) any action taken in respect of a breach of prison discipline committed during a period of imprisonment imposed in relation to the conviction.”

13 Section 12 of the CR Act sets out the consequences of a conviction being spent. It provides:

“If a conviction of a person is spent:

(a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and

(b) a question concerning the person’s criminal history is taken to refer only to any convictions of the person which are not spent, and

(c) in the application to the person of a provision of an Act or statutory instrument:

(i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and

(ii) a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.”

14 Additionally, section 13 prohibits the unlawful disclosure on information relating to a spent conviction.

(1) A person who has access to records of convictions kept by or on behalf of a public authority and who, without lawful authority, discloses to any other person any information concerning a spent conviction is guilty of an offence.

Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.

(2) It is not an offence for the officer in charge of the Criminal Records Unit of the Police Service to make information relating to a spent conviction available to a law enforcement agency or to the holder of an office prescribed by the regulations.

(3) …

(4) It is not an offence for a law enforcement agency (or an authorised officer of a law enforcement agency) in the discharge of its duties (or of the authorised officer’s duties) to make information relating to a spent conviction available to another law enforcement agency or to a court in compliance with an order of the court.

…”

15 DP was charged with an offence an offence under section 40 of the FA Act which was alleged to have been committed on 22 December 2006. The District Court found the offence proved but dismissed it without conviction under section 10(1)(a) of the SP Act. There is no dispute that that conviction is spent. The inclusory definition of spent conviction in section 4 has the effect of providing that the charge-giving rise to a spent conviction is also spent.

16 The Administrator then chose to revoke DP’s firearms licence under section 24(2) of the FA Act. This provides:

“(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

(b) if the licensee:

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.”

17 Clause 19 of the Firearms Regulation 2006 provides that the Administrator may revoke a licence if “satisfied that it is not in the public interest for the licensee to continue to hold the licence.” This is the provision relied on by the Commissioner.

18 Additionally, the Administrator also has discretion to refuse and application for a firearms licence (and therefore to revoke it) on the ground that the issue of the licence would be contrary to the public interest: section 11(7). It is necessary to set out the provisions of section 11 in full:

“(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(3) A licence must not be issued unless:

(a) the Commissioner is 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, and

(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

(3A) Despite subsection (3)(b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned.

(4) Without limiting the generality of subsection (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:

(a) the applicant’s way of living or domestic circumstances, or

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant’s intemperate habits or being of unsound mind.

(5) A licence must not be issued to a person who:
(a) is under the age of 18, or

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or

(e) is subject to a firearms prohibition order.

(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.

(5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A).

(6) Except in the case of a firearms dealer licence or where the applicant’s genuine reason is business or employment, a licence must not be issued to a person who is not a natural person.

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.”

19 The principles and objects of the FA Act are set out in section 3. Subsection (1) establishes that the underlying principles of the Act are to:

“(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

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.”

20 At the heart of this matter is how to reconcile an apparent tension between the provisions of the FA Act and the CR Act. There is no dispute that, under section 12(c) of the CR Act, the Administrator could not rely on DP’s spent conviction as a ground for revoking his firearms licence under the FA Act on the basis that he is not fit and proper (section 11(3)(a) with section 24(2)(c)), or that he has a relevant conviction for a breach of a provision of the FA Act (section 24(2)(a)(iii)).

21 What is in issue is whether the Administrator can have regard to, and rely on, the conduct which led to DP being charged with an offence under the FA Act, despite that charge being spent. The Administrator says it can take that conduct into account in determining to revoke DP’s firearms licence in the public interest.

22 Having decided that issue it will then be necessary to determine whether in the light of the evidence of DP’s conduct to which the Administrator may have regard, DP firearms licence should be revoked on a public interest ground.

Applicant’s Submissions

23 Mr Allan, who appeared for DP, submitted that in reaching a decision to revoke a licence on public interest grounds the Administrator could not have regard to “transgressions” of any of the other criteria specified in section 11 which require that an application for a firearms licence be refused, and are, by section 24(2)(a), also ground for revoking a licence. This was so because the public interest ground in subsection (7) is expressed to operate, “Despite any other provision of this section…” As a result, he submitted, the public interest discretion would not be enlivened until all the other grounds of exclusion had been considered, but not satisfied.

24 When that point is reached Mr Allan argued that there remained a “vestige” of public interest discretion the Administrator could exercise under subsection (7). He submitted that:

This interpretation is supported by section 11(5A) which, although also providing for consideration of the public interest, binds that consideration to the question of a 'risk to public safety'.

It must follow, therefore, that a consideration of the 'public interest' in section 11(7) cannot involve an applicant's transgression of any of the matters listed in subsections (2) to (6). If a transgression of one of those conditions has occurred then the Commissioner does not reach the question of public interest in section 11(7) because the Commissioner has been prohibited from issuing a licence. A fortiori the meaning (or 'content') of the 'public interest' in subsection (7) cannot encompass the considerations in subsections (2) to (6). To do otherwise would render the section obsolete, as the Commissioner's proclaimed discretion would never be reached…”

25 The discretion to revoke a firearms licence on the ground that “it is not in the public interest for the licensee to continue to hold the licence” vested in the Administrator by clause 19 of the Regulation should, he submitted, be similarly constrained. This was so because section 24(2) also provides for revocation “for any reason for which the licensee would be required to be refused a licence.” The legislature had thus “hived off,” and differentiated, a consideration of the public interest criteria from those set out in sections 11(2) to (6) and section 24 (2)(a).

26 Mr Allan submitted that the behaviour giving rise to a charge to which a spent conviction relates is subject to protections created by the CR Act:

“Section 4(2) defines a 'spent conviction' as including a reference to 'the charge to which the spent conviction relates'. The term 'charge' should be understood to include the factual material placed before the court for criminal determination. To hold otherwise would render nonsensical the inclusion, in section 4(1) of the 'finding[s]' that lead to the court's determination. Furthermore, the term 'charge' is defined by the Encyclopaedic Australian Legal Dictionary as a 'formal allegation that a person has committed an offence'. It would [sic] incorrect to confuse the title to a criminal section (e.g. 'obtain driver licence by false statements') with the actual legislative provision. The provision itself will facilitate a series of factual assertions that together constitute an informant's 'formal allegation'; it is the 'charge'.
Mr Allan also relied on the decision of Higgins JM in Oliver v Commissioner of Police, New South Wales Police Service to support this proposition.

27 His submissions continued:

“It is relevant, at this juncture, to note that the CR Act operates (in the present context) 'in the application to the person of [a] ... statutory instrument': section 12(c)(ii). In other words, the CR Act was envisaged to operate upon other statutory instruments, whether they were enacted before or after the CR Act (in 1991). The meaning of 'character or fitness' in section 12(c)(ii) should therefore be given as broad a construction as is consistent with common usage, mindful that when the CR Act was drafted it would potentially apply to then-unknown statutory instruments. The intended breadth of this language is supported by the opening words 'a reference in the provision to'. This leaves the provision amenable to matters bearing upon character and/or fitness that may be referred to in other legislation, without those actual words being used.

28 He noted that section 13 of the CR Act prohibits the disclosure of “any information concerning a spent conviction” save for making available to a law enforcement agency, which the Tribunal he noted is not, such information. He submitted that this prohibition includes a prohibition on the dissemination of information relating to the “factual elements” of a spent conviction.

29 As a consequence he submitted the Tribunal in considering this review should set to one side information relating to the circumstances surrounding PD’s spent conviction, along with those matters found in section 11(2) to (6).

The Respondent’s Submission

30 The Administrator argued that the object of the CR Act is to ensure that spent convictions do not form part of a person’s criminal history. Thus the Administrator did not seek to rely on the “penalty” the subject of the spent conviction, but the “behaviour” giving rise to the spent conviction. In making that submission the Administrator did not address the provisions of section 12 of the Act which makes specific provisions concerning the disclosure of spent convictions, and of the use (if any) which can be made of a spent conviction “in the application of a provision of an a Act or statutory instrument”. Similarly, the Administrator did not address DP’s submission on the effect of section 13 of the CR Act. The Administrator did seek to draw a distinction between this case and the decisions in Mahabir and Oliver on the ground that they relate to the issue of “penalty which in turn determined whether a person was a ‘disqualified individual’” whereas, in DP’s case, the Administrator relied on behaviour.

31 Ms Weiss, who appeared as agent for the Administrator, said that the Administrator “does not seek to rely on the penalty but rather, the behaviour of the Applicant to determine whether it is the public interest for him to be granted the relevant licence.” Ms Weiss did not directly address Mr Allan’s submission as to the correct interpretation of the public interest discretions contained in section 11(7) of the FA Act and clause 19 of the Regulation. She did, however, refer to the decision of Deputy President Hennessy in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT to the effect, at [32] that the public interest is an inherently broad which allows the Administrator to have regard “to a wide variety” of factors when considering whether to exercise the discretion.

32 She noted that the Tribunal is a specialist forum (Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 at [27]), and that the in exercising its review function the Tribunal may have regard to material which was considered in criminal proceeding, that were ultimately dismissed. This is so because that material goes to “ the question of what is the correct and preferable decision in connection with the particular administrative discretion,” Commissioner of Police, New South Wales Police Service v Mercer [2005] NSWADTAP 55 at [20] and see also Bazouni &ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 at [21]. It would be anomalous, she submitted, if the Administrator could have regard to conduct alleged in a criminal charge, which was dismissed (as was said in Mercer), but could not have regard to the same conduct if the charge resulted in a spent conviction.

Consideration

33 Is the conduct underlying a spent conviction also spent? In Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358 the President considered the application of section 12 of the CR Act in the context of a refusal by the Administrator of an application for a licence under the Commercial Agents and Private Inquiry Agents Act 2004 (the CAPIA Act). There the Administrator had refused a licence based on a conviction which was spent. In the course of his reasons O’Connor DCJ noted that there were two earlier, conflicting decisions of the Tribunal with respect to the interaction of the CR Act with the provisions of the Security Industry Act 1997 ( the SI Act).

34 In the first of these Pearce v Commissioner of Police, NSW Police Service [2000] NSWADT99, Robinson JM, found that the provisions of section 12 the CR Act and those of section 16 (1)(b) of the SI Act were in conflict. He resolved that conflict by holding that the provision of the CR Act should be read subject to the later provisions of the SI Act. In Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221 Hennessy DP took a different view. She found, at [7], that there was no such conflict between the provisions because the reference to conviction in section 16 of the SI Act “is a reference only to convictions which are not "spent".”

35 In Mahabir the President said, at [18] and [19]:

“18 I favour the view expressed by Hennessy DP. Section 12 of the Criminal Records Act is intended, as I read it, to have general application. The relevant words for this case are these:
‘in the application to the person of a provision of an Act or statutory instrument: a reference in the provision to a conviction is taken to be a reference to any convictions of the person which are not spent’.
19 This must mean that wherever the word ‘conviction’ is used in State legislation it is to be read down in this way, unless there is an express provision to the contrary or a necessary implication can be found in the other statute read as a whole. I do not see this as the kind of case to which the ‘repugnancy’ learning is directed. In my view there is no conflict of the degree suggested by Robinson JM. The general provision found in section 12 applies across the body of State legislation. It is a dampener on the meaning to be given to the term ‘conviction’ across all State legislation.”

36 I also agree with that reasoning. It should be noted that the President later, at [20], gave examples of a number of statutes dealing with applications for licences in which express provision has been made excluding the application of the CR Act. This is not the case with the FA Act. Interestingly, in the ACT, the legislature has seen fit to exclude the Spent Convictions Act 2000 from operating with respect to firearms licence applications: see section 19(5) Spent Convictions Act 2000 (ACT) and Re Williamson and Registrar of Firearms (2001) 64 ALD 245.

37 In Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153 Higgins JM touched on the further issue of whether the conduct giving rise to a finding of guilt, which finding is spent, can be considered in determining whether the issue of a category AB firearms licence would be contrary to public interest. Higgins JM canvassed the issues, but ultimately decided, at [33], that because she was not satisfied that the public interest required that the licence be refused, taking into account that conduct, it was unnecessary to decide the issue.

38 In the course of reaching that conclusion Higgins JM canvassed a number of relevant issues. She wrote at [27] to [32]:

“27 On a literal reading of section 12(a) of the Criminal Records Act the words, ‘information concerning the spent conviction’ indicate that the fact of a conviction or finding of guilt by a court and the conduct the subject of that conviction or finding comes within the terms of that paragraph. In any event, in my opinion, in its ordinary use the term conviction when relating to a specific event will inevitably include the conduct the subject thereof. On this basis, there is a strong argument that the proper construction of section 12 of the Criminal Records Act is as contended for by the applicant in that where a conviction is spent the person the subject of that conviction is not required to disclose the fact of conviction or the conduct the subject of that conviction unless the circumstances are such that the operation of the Act or one or more of its provisions (i.e. section 12) is expressly excluded (i.e. by reason of sections 15 and 16 of the Criminal Records Act or by reason of regulations made pursuant to section 25 of that Act).

28 Section 12(a) must also be read in the context of the remaining provisions of that section and the objects of the Act. In this regard it is noted that the objects of the Criminal Records Act are set out in section 3 and include the implementation ‘of a scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour.’ The section goes on to state that on completion of the period of crime free behaviour, ‘the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history’.

29 In regard to the remaining paragraphs of section 12 of the Criminal Records Act, these provide that a spent conviction does not form part of a person’s criminal history (see section 12(b)) and where a provision of another Act or statutory instrument makes reference to a conviction (see section 12(c)(i)), or the fitness and propriety of a person (see section 12(c)(ii)), that provision is to be construed as only referring to those convictions which are not spent. Section 11(5)(b) of the Firearms Act is an example of a provision referring to a person’s conviction that comes within section 12(c)(i) of the Criminal Records Act and section 11(3)(a) of the Firearms Act is an example of a provision referring to a person’s fitness and propriety that comes within section 12(c)(ii) of the Criminal Records Act. There is no dispute that spent convictions cannot be considered under these particular provisions. Furthermore, there does not appear to be any dispute that the conduct the subject of a spent conviction cannot be taken into account for the purpose of assessing a person’s fitness and propriety. To hold otherwise would defeat the purpose of section 12(c)(ii) of the Criminal Records Act.

30 In this application the relevant provision in the Firearms Act is section 11(7), which does not refer to an applicant’s conviction or fitness and propriety. It relates to the public interest and as explained below is a broad concept. Furthermore it is a concept that is to be considered in the context of the objects of the Firearms Act, which is public safety.

31 While section 12(b) and (c) of the Criminal Records Act does not have any direct application to section 11(7) of the Firearms Act, it is difficult to see why section 12, including paragraph (a) should be read down to have no application, particularly when Parliament has expressly provided for a mechanism whereby particular provisions of other legislation can be excluded from the operation of provisions in the Criminal Records Act, including section 12. That mechanism has been used to exclude the operation of section 12 in respect to applicants for admission to legal practice under the Legal Profession Act 1987 (see clause 11 of the Criminal Records Regulation 2004). However, no similar regulation has been enacted in respect to the Firearms Act. This may of course be a legislative oversight.

32 It is also noted that the construction of section 12, as contended by the applicant, gives rise to an anomaly in that the Tribunal could not have regard to the conduct of the applicant the subject of the ‘offer to sell’ offence yet it could have regard to the conduct that was the subject of the remaining charges that were dismissed.”

39 In addition to the factors discussed by Higgins JM, section 4(2) of the CR Act has the effect of including the charge to which a spent conviction relates, as part of a spent conviction. A criminal charge consists of various elements all of which must be satisfied to the requisite standard, in order for the offence to be found proved. The criminal law reports are replete with detailed analysis of the elements of various criminal offences. Each element of an offence has to be satisfied by proof of the facts constituting them. Thus the conduct alleged against an individual which underlies each element of an offence necessarily forms part of a charge. As a consequence, I accept DP’s submission that a charge is more than a simple allegation of a breach of a legislative provision: it is an allegation of conduct said to satisfy all elements of the offence. It necessarily relates to conduct. Because a spent conviction includes the charge to which the spent conviction relates, it follows that the conduct which is the subject of the charge is similarly spent.

40 Are the discretions to revoke on public interest grounds subject to the limitations pressed by the Applicant? In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the Appeal Panel considered the scope of the Administrator’s public interest discretion under the SI Act. The circumstances were that the Administrator had made a decision under previous legislation to revoke Mr Toleafoa’s licence on two grounds. First, on the basis of a series of convictions and, secondly, that he was not a fit and proper person to hold a licence. Mr Toleafoa successfully appealed that decision in the Local Court. After the commencement of the SI Act the Administrator again revoked his licence. This time the Administrator again relied on his convictions and again found that he was not a fit and proper person. The Administrator also relied on the public interest ground which had been introduced with the new legislation. At first instance the Tribunal set aside the Administrator’s decision. The Administrator appealed.

41 The Appeal Panel allowed the Administrator’s appeal and, in doing so, discussed the public interest ground, at [25] to [30]:

25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. The appellant appears to have adopted a similar view in formulating its reasons. Its argument, in effect, is that if its objections fail on character grounds, the matters as to character combined with the nature of the activity proposed to be engaged in are, at least in the case of the Class 1C licence application, sufficient to justify refusal in the public interest.

26 In the present instance the Member appears to have had regard to two factors in forming a view as to the public interest. The first was the absence of any additional adverse information in respect of the applicant's criminal record since the hearing in 1997. Clearly in our view this is a relevant matter, both as to the exercise of the character discretion and as to the public interest. If a person has maintained a clean record since the last time the matter was reviewed, that should count in their favour.

27 The second factor considered by the Member, as we interpret it, is the desirability of not subverting the decision of an earlier tribunal where the same question is raised on a later occasion before another tribunal in circumstances where there is no fresh information. We agree that for purposes of a public interest analysis it is reasonable to have regard to that consideration.

28 However we are satisfied that this was not a case where that consideration could readily be invoked.

29 As we understand the matter, on this occasion the appellant was relying on the broad discretion found in section 15(3) to justify its refusal. It was saying, as we understand it, if the refusal fails on character grounds, the appellant nevertheless submits that there are public interest factors which justify refusal.

30 It is clear that the Member approached the question of the public interest without having any regard to the considerations that the appellant sought to advance. He gave emphasis to one factor, the desirability of a later court or tribunal not interfering with the decision of an earlier court or tribunal where essentially similar facts and circumstances had been before the court or tribunal on the earlier occasion. While there is, we acknowledge, a public interest in avoiding the re-agitation of matters that have been resolved, the situation here was one where there is a new statutory scheme in force and a ground relied upon in relation to the Class 1C licence (the public interest ground) which did not form part of the previous scheme.

42 In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [33] Hennessy DP found that the Appeal Panel’s discussion of the public interest under the SI Act was equally applicable under the FA Act.

43 Mr Allan’s submission that the public interest grounds for revocation of a firearms licence, whether under section 11(7) or clause 19 of the Regulation, “cannot involve an applicant's transgression of any of the matters listed in subsections (2) to (6)” fails to acknowledge the interaction between public interest, character and other grounds discussed in Toleafoa. There the Appeal Panel acknowledged that where character or other grounds may be insufficient to justify a refusal or revocation, those grounds combined with other factors, may justify a decision based on the public interest. In Toleafoa the other ground which the Tribunal failed to consider was the nature of the activity Mr Toleafoa was licenced to undertake, and the public interest in him not undertaking those activities in the light of his character and convictions. As a result, I do not accept Mr Allan’s submission that a consideration of the public interest discretions to revoke a firearms licence cannot involve an applicant's transgression of any of the matters listed in sections 11(2) to (6), where those transgressions are insufficient on their own to justify a revocation.

44 Can spent convictions be taken into account in the exercise of the public interest discretion? Spent convictions, which include the charge and the conduct giving rise to the charge, cannot be used as basis for founding a decision to revoke a firearms licence on the basis that the licence holder is no longer fit and proper (section 12(c)(ii) CR Act), or that the licence holder has been convicted of an offence which requires revocation (section 12(c)(i) CR Act). In contrast, it is clear that convictions which impact on a persons fitness and propriety but which do not result in a licence holder being unfit, as well as conduct leading to charges for which a licence holder was later acquitted, may be used, when combined with other public interest considerations, to ground a public interest revocation: Mercer, Bazouni and Toleafoa. If the CR Act operates to exclude the consideration of conduct giving rise to spent convictions, the anomaly referred to by Higgins JM arises.

45 On a literal reading of section 12 of the CR Act it has no application to section 11(7) of the FA Act or clause 19 of the regulation. PD has not been required by the Administrator to disclose information or answer question relating to his spent conviction. Rather the Administrator, as public authority with access to the records relating to the spent conviction, has had regard to that information in the discharge of its statutory functions under the FA Act. The public interest discretions found in both section 11(7) and clause 19 of the Regulation make no direct reference to either “ a conviction” or to a “persons character and fitness” as required by section 12(c) of the CR Act. In Oliver Higgins JM expressed the opinion that having regard to the objects and scheme of the CR Act it is difficult to see “why section 12, including paragraph (a) should be read down to have no application, particularly when Parliament has expressly provided for a mechanism whereby particular provisions of other legislation can be excluded from the operation of provisions in the Criminal Records Act, including section 12.” The source of that conundrum are the decisions which make it clear that considerations of fitness and propriety (which the CR Act specifically deals with) plus other identified public interest considerations, can found the exercise of the public interest discretions. Importantly, that source is not found in a “reference” in the FA Act or Regulation as required by section 12(c) of the CR Act. While I share the concerns expressed by Higgins JM I do not think, in the light of the plain words of section 12(c), they justify an interpretation which would have the effect of excluding the consideration of a spent conviction, and the conduct giving rise to it, as founding part of the reasoning underlying a public interest revocation. As the Appeal Panel made clear in Toleafoa, however, there must be more that the failed character and conviction grounds to justify that public interest.

46 Should DP’s firearms licence be revoked on public interest grounds? In the Internal Review Officer’s reasons for decision the following findings of fact were relied on. First, that on 10 March 1999 DP was convicted of drive in a manner dangerous and was placed on a 200-hour community service order without conditions and disqualified from driving for three years. Secondly, that on 21 December 2006 when Police attended his business premises, “The building was unsecured. Police found an unregistered, unsecured replica firearm and an unsecured air rifle located in the shower.” Thirdly, that DP was subsequently charged and convicted and fined, but then appealed against the severity of the penalty. The District Court on hearing the appeal dismissed the charge without conviction. As a consequence his firearms were forfeited. Fourthly, that he holds a licence for the genuine reasons of Recreational Hunting/Vermin Control. Finally, that “Police have not inspected and approved your firearms safekeeping provisions.”

47 A number of points need to be made with respect to these findings. First, DP’s conviction for drive in a manner dangerous was not something, which caused the Administrator to refuse his initial application for a licence and subsequent reapplication.

48 Secondly, DP explained in evidence that the factory premises at which the weapons were found were new. On the day in issue he had completed work on a new project, had a couple of celebratory beers, and arranged for his wife to pick him up from work. The Police gained entry through a gate, which a neighbour opened for them, and then entered the premises via a door with a broken lock. They had seen the door was open and were checking the premises. He said that the general public could not have gained entry to the premises because of the gate. Only someone intent on stealing could gain entry. He later agreed that anyone who climbed the fence could gain easy entry.

49 The replica firearm was a die-cast copy of an antique firearm, which his wife had purchased for him while on holiday. It was on display in his office. He had no idea it required registration.

50 The firearm found in the shower, was an air rifle, which he had brought to work for the purpose of trying to get rid of birds, which were nesting in the factory and messed on his stock. He had not fired a shot. It was in the shower, because from there he could get it quickly while still being out of view should anyone come to the factory. There was no one else working there. Ammunition for it was properly secured elsewhere. He offered no explanation for leaving the weapon at work when he returned home.

51 DP gave evidence that he has proper safekeeping facilities for his firearms. He explained that he has a farm, where he runs some cattle. Over the years he has held a firearms licence he has used his firearms to put down cattle on six occasions, and in dealing with rabbits and feral pigs. He said that without a firearms licence he would be unable to put down injured cattle. Their suffering would be prolonged while a Vet was called. Additionally, he would be unable to deal with rabbits and feral pigs.

52 The Internal Review Officer’s decision expressed a number of conclusions adverse to DP, but did not expressly state which provision(s) of the FA Act the decision to affirm the earlier decision to revoke was made under. In submission the Administrator pressed the public interest and confirmed that, “Specifically, the Respondent relied upon the Applicant being found guilty of the offence, which is now spent.” The Internal Review Officer’s reasons relied on the circumstances relating to DP’s offence to conclude that DP had ignored his responsibility to register the replica firearm, and was intending to use air rifle in an urban environment in circumstances not contemplated by his licence. This, it was said, called into question his understanding of safe firearms practice and placed the public safety at considerable risk.

53 It is important to note that the evidence reveals that Police detected considerably more than just a breach of the safe storage requirements of section 40 of the FA Act on the evening of 21 December 2006. They detected DP in possession of an unregistered duplicate firearm. I accept his evidence that he did not realise that it should be registered, but like, the Internal Review Officer, think that this demonstrates a lack of understanding of firearms regulation on his part.

54 They also detected him in circumstances in which he was intending to use an air rifle to shoot at birds within a close factory building in a busy urban environment. Despite the type of weapon in issue, and the circumstances in which DP intended to use it, DP’s intention to discharge the weapon inside a building in an urban environment impresses me as risky and ill considered. It casts grave concerns over DP’s suitability to hold a firearms licence, and raises real public interest concerns should he continue to do so.

55 These concerns are additional to the concerns, which arise from, and the conduct, which underlies, DP’s spent conviction. That conduct involves leaving an air rifle unsecured in his factory premises. Premises, which he knew, because of the faulty lock, were not as secure as they should be. As the Internal Review Officer noted those premises are located in an urban area with a recognised crime problem.

56 In Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 the Appeal Panel said at [47-48]:

47 In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that is seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal can not take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions.

48 In our view, the contraventions that occurred in this case were serious enough, giving due weight to Mr Lynch’s history and the explanations given for his conduct, to make the Commissioner’s and Tribunal’s decisions the correct and preferable ones in exercise of the discretion given by section 24 (2)(b)(ii). Similarly the separate ‘public interest’ basis for the decision was available in the circumstances. There were aspects of his conduct and explanations, which gave rise properly, we think, to the concerns expressed about his misunderstanding of current policy in relation to the personal possession of firearms.

57 In my view the circumstances relating the conduct which led to DP being charged, and the other conduct detected at that time with respect to his possession of an unregistered firearm and his intention to use a registered firearm in a foolhardy and risky manner, give rise to significant public interest concerns should DP continue to hold a firearms licence. I refer not only to the overriding public interest in protecting the public safety, but also to the public interest in ensuring that licence holders have an understanding of their obligations, and the maturity to follow them, as well as the public interest in ensuring the maintenance of a credible and consistent licensing regime, which ensures that the possession of a firearms licence is privilege in accordance with the principles and objects of the FA Act. Those concerns are sufficient to justify the revocation of his firearms licence on public interest grounds.

58 As a result I conclude that the correct and preferable decision is to affirm the decision to revoke DP’s Category AB firearms licence.

59 Because publication of my orders and reasons in this matter would result in a disclosure of information relating to a spent conviction in breach of section 13 of the CR Act, I will also make an order under section 75(2)(b)(i) of the Administrative Decision Tribunal Act 1997 prohibiting the disclosure of the Applicant’s name and address, or any other identifying material. This should prevent his identification and the disclosure of information relating to his spent convictions.

Orders

1. Under section 75(2)(b)(i) of the Administrative Decision Tribunal Act 1997 the Tribunal orders that the disclosure of the Applicants’ name and address or any other material that identifies, or may lead to the identification of, the Applicant is prohibited.

2. The decision of the Commissioner of Police made on 25 May 2007 to revoke DP’s Category AB firearms licence is affirmed.