Hargrave v Commissioner of Police, New South Wales Police Service (GD)

[2000] NSWADTAP 24

Appeal Panel

CITATION:	Hargrave -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 24
PARTIES:	APPELLANT William Leigh Hargrave RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	999024
HEARING DATES:	29/02/2000, 12/10/2000
SUBMISSIONS CLOSED:	10/12/2000
DATE OF DECISION:	12/12/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	O'Connor K - DCJ (President); Davidson R - Judicial Member; Bolt M - Member
CATCHWORDS:	relevant/irrelevant considerations - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993092
DATE OF DECISION UNDER APPEAL:	09/13/2000
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Hargrave v Commissioner of Police [1999] NSWADT 81 Osborne v Commissioner of Police [2000] NSWADTAP 10 Maxwell v Murphy (1957) 96 CLR 261 Nicholas v Cmr Corp Affairs [1988] VR 289 (Full Court) Geschke v Del-Monte Furnishers Pty Ltd [1981] VR 856 (Sup Ct Vic, Gobbo J) Bourke v Commissioner of Police [1998] NSWADT 1 Doyle v Commissioner of Police [1999] NSWADT 84; on appeal, [2000] NSWADT 1 Wilson v Commissioner of Police (NSWCA, unreported, 29 July 1994)
REPRESENTATION:	APPELLANT D Fitzgibbon, barrister (29/02/2000) In person (12/10/2000) RESPONDENT N Marsic, solicitor
ORDERS:	Decision under appeal affirmed.

1 In a decision delivered on 13 September 1999 (Hargrave v Commissioner of Police [1999] NSWADT 81), the General Division of the Tribunal (the Tribunal) affirmed a decision by the Commissioner of Police made under the Firearms Act 1996 (the Act; also referred to as the 1996 Act) to refuse an application by William Leigh Hargrave for a firearms licence covering categories A, B, H and G. The ground for refusal was that Mr Hargrave remained subject to a firearms prohibition order (the Order) which took effect in 1977.

2 The Order was issued under the Firearms and Dangerous Weapons Act, No 18 of 1973 (the 1973 Act) on 2 September 1975, and took effect from the date of personal service, 10 March 1977. It has not been revoked. The Order was made after the conviction of Mr Hargrave for the offence of armed robbery, which offence occurred in 1972 when Mr Hargrave was a young man.

3 Section 11(5)(e) of the Act provides that: ‘A licence must not be issued to a person who is subject to a firearms prohibition order.’

4 Mr Hargrave has an interest in recreational shooting and has been a member of Silverdale Pistol Club. While the exact history was not before us, the Tribunal below was informed that he had held a firearms licence over many of the intervening years, but when it came to the notice of the Firearms Registry around 1998 that he was subject to the Order, the Registry cancelled his licence. Mr Hargrave subsequently applied for a licence, which was refused, giving rise in turn to his lodging an application for review by the Tribunal. That decision affirmed the Commissioner’s decision.

5 This appeal first came on for hearing on 29 February 2000. The offence which, apparently, led to the Order being issued, occurred in 1972 when he was a young man. Mr Hargrave’s statement was not disputed that the firearm involved in the offence was a cap gun. Subsequently Mr Hargrave filed an affidavit setting out his version of the circumstances of the offence, which he depicted essentially as a youthful prank affected by alcohol, in which he was influenced by a friend to stop their car and threaten a hitchhiker with a cap gun and demand money. He pleaded guilty, was sentenced to two years’ imprisonment but only served 16 weeks, being released early, he said, because of his good behaviour. He said that he did not have any further adverse history. Mr Hargrave now has a grown-up family, and had (until his licences were revoked) shared his interest in recreational shooting with his family. He said that he wanted his licence back so that he can continue to share an interest in shooting with his wife and one of his adult daughters who are gun club members.

6 On that occasion after some discussion with the legal representatives of the parties, the Appeal Panel decided to adjourn the hearing to give Mr Hargrave an opportunity to put a submission to the Commissioner requesting him to revoke the Order. That step was taken but proved not to be successful. Consequently the appeal was re-listed and resumed on 12 October 2000.

Grounds of Appeal

7 In his notice of appeal filed 5 October 1999 Mr Hargrave objected on two grounds to the Tribunal’s decision. He contended that the Tribunal had based its decision on the resolutions contained in Hansard (this we understood to be a reference to the Australian Police Ministers Council resolutions of 10 April 1996, which provide the background to the 1996 Act) rather than the terms of the Act. There is nothing in the decision that supports this contention. There are references to Parliamentary intent as gleaned from the objects clause at [9], [10] and [18] of the decision, but there is no weight given to any extrinsic material.

8 He also contended that the decision of the Tribunal was totally inconsistent with decisions given by the Local Courts in issues with similar or identical facts. However, the Tribunal is not bound by Local Court decisions: Osborne v Commissioner of Police [2000] NSWADTAP 10 at [27].

9 In its reply to the notice of appeal the solicitor for the Commissioner submitted that no point of law was disclosed. Further the Commissioner submitted that the Tribunal had properly interpreted the Act and that it was proper, if the Tribunal had done so, to take into account extrinsic material such as Hansard bearing on the regulatory scheme now found in the Act. She submitted that the Tribunal was not in any way bound by the Local Court.

10 In a revised notice of appeal filed on 12 November 1999 signed by Mr Hargrave’s solicitor, additional points were taken.

11 The first point was that the Order was invalid because it was made under an Act, the 1973 Act, which was not in force at the time of the offence giving rise to the conviction. The relevant provisions of the 1973 Act were ss 69 and 70. They provided that the Commissioner could make such an order against any person ‘who, in the opinion of the Commissioner, is not fit, in the public interest, to be permitted to have a firearm …’ and that it was to take effect once served personally: s 69; and a person subject to an order in force ‘shall not have a firearm, not being a pistol or a blank fire pistol, in his possession’: s 70. The Act provided for a right of appeal within 21 days after receipt of an order to a Court of Petty Sessions held before a Stipendiary Magistrate: s 24 of the 1973 Act.

12 The second point was an extension of the first point. It was contended that the 1973 Act could not operate retrospectively to alter rights.

13 The third point was that the Order had not been continued by the transitional provisions of the various Firearms Acts which succeeded the 1973 Act.

14 The fourth point was that s 11(5)(e) of the 1996 Act was invalid because it had the effect of again punishing the appellant for the armed robbery offence.

15 The solicitor for the Police Commissioner replied to this notice of appeal on 25 November 1999. The reply put the above in issue.

16 All of these issues were canvassed before the Tribunal.

Transitional Provisions

17 As to the effect of the transitional provisions, the Tribunal traced the history, commencing with the 1973 Act, then moving to the Firearms Act 1989 (the 1989 Act) and finally the 1996 Act. We agree with the Tribunal below that the transitional provisions of the 1989 Act continued in force orders made under the 1973 Act, see cl 3 of sched 1 of the 1989 Act, which provides:

‘A firearms prohibition order -
(a) that was made under section 69(1) of the former Act; and
(b) that was in force immediately before that provision was repealed by this Act, shall be treated as a firearms prohibition order under this Act.’

18 The 1996 Act’s transitional provision was arguably less clearly expressed. Schedule 3, cl 11 provided:

‘A firearms prohibition order that was made under section 39 of the former Act, and in force immediately before the repeal of the section by this Act, is taken to be a firearms prohibition order under this Act.’

19 The difficulty, upon which the submissions for Mr Hargrave have focused, arises from the expression ‘made under section 39 of the former Act’. Does this expression confine the operation of the provision to orders formally made pursuant to that Act, and remove from the scope of the provision orders made under the 1973 Act?

20 As can be seen, orders made under the 1973 Act were ‘treated’ by the 1989 Act as orders under the Act. Is that sufficient for them to be regarded for the purposes of the 1996 Act as ‘made’ under the 1989 Act? Is the word ‘made’ to be construed as only referring to those orders that have been issued for the first time during the period of operation of the 1989 Act together with any old orders that were ‘re-made’?

21 The word ‘make’ has a wide variety of meanings. The Macquarie Dictionary (2nd ed 1991) lists 37 meanings. Perhaps the meaning most apposite to the present statutory context is no. 2 ‘to produce by any action or causative agency’. Other meanings that are apposite are no. 8 ‘to give rise to; occasion’ and no. 13 ‘to fix; establish; exact; make laws.’

22 In this instance normally an order would be said to have been ‘made under … the former Act’ where the Commissioner had issued an instrument specifically relying on the powers given by that Act. But the 1989 Act also continued in force old orders. That provision, a deeming provision, was the causative agency which gave rise or brought those orders under the new Act. In that way there were ‘made’ orders under the new Act. An order could be ‘made’ under the 1989 Act not merely by a new order from the Commissioner but also by operation of law.

23 Further the 1989 Act equated orders made under that Act with orders previously made under that Act. Sched 3 cl 11 of the 1996 Act refers to orders ‘in force’ under the 1989 Act. That points to a legislative intention to maintain the continuity of 1989 Act prohibition orders.

24 In our view ordinary principles of statutory interpretation provide support for the conclusion that the transitional provision effectively kept alive pre-1989 Act orders.

25 In its decision the Tribunal, as we perceive it, expressed the view that a purposive approach should be adopted in scrutinising the text of the provision and then moved immediately to take account in general terms of the Parliamentary intent underlying the 1996 Act. There was perhaps a gap in the Tribunal’s approach in that it did not first seek to construe the meaning of the term ‘made’ by reference to the ordinary grammatical meaning of that term before moving to this wider discussion.

26 But it will be evident from the approach that we have adopted that we agree with the ultimate conclusion reached, that the transitional provision was effective in keeping alive the 1973 Act orders.

Original Order and Retrospectivity

27 The more fundamental contention was that the Order was not validly made because Mr Hargrave committed the offence before the 1973 Act came into effect. The Tribunal in its reasons dealt with this point briefly. It noted that the discretion conferred on the Commissioner at that time, and as it has remained, was one to be exercised on the basis of the public interest. The Tribunal commented at [16]: ‘It is entirely appropriate that such a decision should take into account offences which were committed prior to the legislation coming into effect.’

28 The principle against interpreting statutes to have a retrospective effect on the rights or liabilities of members of the community is a fundamental one. The principle can be displaced by an intention expressed with reasonable certainty. See generally Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ.

29 In this instance the objection is that the Order was issued on the basis of events which pre-dated the legislation which created firearms prohibition orders. That the Order was issued because of the offence which occurred in 1972 is the assumption on which this case has been conducted. We do not have any evidentiary material as to what factor or factors gave rise to the issuance of the Order. Nonetheless we will proceed to deal with this argument on the assumption that the offence and conviction was the sole basis for the Order.

30 Relevantly to this case, in 1973 a new form of control over the possession of firearms in the community was introduced. No existing substantive rights of the applicant were affected. The Act gave rise to a new risk, that he might now be the subject of a prohibition order preventing him from obtaining a licence.

31 We consider that this is not a case affected by the principle in relation to retrospectivity. A provision is not retrospective merely because it operates upon facts and circumstances antecedent to its enactment: see Nicholas v Cmr Corp Affairs [1988] VR 289 (Full Court) at 296 per Kaye J; citing also Halsbury, 4th ed, vol 44 ‘Statutes’, para 921. The 1973 Act merely sought to allow the Commissioner to take account of antecedent facts and circumstances as a basis for future action: see for example, Geschke v Del-Monte Furnishers Pty Ltd [1981] VR 856 (Sup Ct Vic, Gobbo J). (There would be a real retrospectivity issue if for example a prohibition order had the effect of rendering unlawful past conduct in relation to the possession of firearms which had been lawful in the absence of such an order.)

32 The question was raised as to whether the ‘public interest’ discretion relied on in issuing a prohibition order was impliedly time-limited. Unless the Parliament has expressly declared otherwise, a discretion based on the public interest is, we consider, exerciseable in relation to any factor relevant to the public interest without any fixed limit as to time. It would be odd in the extreme if in conferring the discretion on the Police Commissioner to issue orders Parliament intended to limit the operation of the discretion so as only to take account of factors that came to notice after the date of commencement of the 1973 Act. It is difficult to imagine a factor of greater relevance than that a person has incurred a conviction for an offence of violence involving the use of a firearm whenever it occurred.

Mandatory Obligation

33 It was also urged on the Tribunal that nonetheless a discretion remained open to be exercised by the Police Commissioner in this case. We consider that once a firearms prohibition order is shown to be in force, the Police Commissioner was duty bound by s 11(5)(e) to refuse the licence application. There is no discretion to be exercised: see generally Bourke v Commissioner of Police [1998] NSWADT 1, Doyle v Commissioner of Police [1999] NSWADT 84; on appeal, [2000] NSWADT 1 applying Wilson v Commissioner of Police (NSWCA, unreported, 29 July 1994).

The Validity of s 11(5)(e) of the 1996 Act

34 As noted earlier, another submission was to the effect that the imposition of the Order amounted to double punishment for the one offence, and violated the principle against double jeopardy.

35 Section 3 of the 1996 Act formulates underlying legislative principles. A fundamental object of the Act is to ensure and improve public safety. Section 11(5)(e) of the Act is not designed to punish but to protect and promote the public interest; that, without question, is a valid law under s 5 of the Constitution Act 1902 for the peace, welfare and good government of New South Wales.

Original Order and Procedural Fairness

36 Towards the end of submissions, Mr Hargrave raised the question of whether the original Order was defective because it had been issued without according procedural fairness to him. It was said that the Order was issued without notice to Mr Hargrave and without giving him an opportunity to be heard.

37 The Commissioner submitted that the Tribunal had no jurisdiction to go behind a firearms prohibition order and assess its validity in the way suggested. In accordance with the principles developed by the Commonwealth Administrative Appeals Tribunal, it is, we consider, open to the Tribunal to examine the question of the underlying validity of an administrative decision: Doyle v Commissioner of Police [1999] NSWADT 84 at [17]-[37]. But this is a point that should have been aired, if at all, before the primary Tribunal not the Appeal Panel. We are not disposed to seek to deal with it on this occasion.

38 We should also indicate that there was a right of appeal in 1977 to the Local Court, and that facility might be sufficient to overcome any objection to the process on the ground that Mr Hargrave was denied procedural fairness.

39 Constitution of Tribunal. On 29 February 2000 when the Appeal Panel first sat, the non-judicial member was Mr Mapperson. He was unavailable for the resumed hearing on 12 October 2000 and was replaced by Ms Bolt. The parties consented to this change in the constitution of the Panel.