Kocic v Commissioner of Police, NSW Police Force

[2014] NSWCA 368

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368

Hearing dates:

7 October 2014

Decision date:

29 October 2014

Before:

Basten JA at [1];
Leeming JA at [82];
White J at [94]

Decision:

(1) Grant leave to the applicant to appeal.

(2) Dismiss the appeal.

(3) Grant leave to the respondent to cross-appeal.

(4) Dismiss the cross-appeal.

(5) No order as to the costs of the appeal and the cross-appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - tribunals - courts and tribunals permitted to consider "spent convictions" - whether a tribunal exercising merits review is permitted to consider "spent convictions" where the original decision-maker is prohibited from doing so - Criminal Records Act 1991 (NSW), ss 12, 16

FIRE, EXPLOSIVES AND FIREARMS - firearms licences - licence must not be issued if the applicant is not a "fit and proper person" - discretion to refuse if issuing the licence would be "contrary to the public interest" - whether Criminal Records Act 1991 (NSW) precludes consideration of "spent convictions" in determining whether an applicant is a "fit and proper person" - whether Commissioner of Police prohibited by Criminal Records Act 1991 (NSW) from considering the underlying conduct of the "spent conviction" - whether spent convictions can be considered in determining public interest - Firearms Act 1996 (NSW), s 11 - Criminal Records Act 1991 (NSW), s 12

STATUTORY INTERPRETATION - inconsistent statutes of single legislature - Firearms Act 1996 (NSW), s 11 and Criminal Records Act 1991 (NSW), s 12 - whether the provisions can operate together harmoniously - whether there is an implied repeal of the earlier provision - purpose of the provisions - whether an implied repeal arises where the alleged inconsistency is between an interpretative provision and a substantive provision

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW), ss 63, 119
Civil and Administrative Tribunal Amendment Act 2013 (NSW), Schedule 2
Civil and Administrative Tribunal Act 2013 (NSW), Sch 1, cl 8
Firearms Act 1989 (NSW), s 25
Firearms Legislation (Amendment) Act 1992 (NSW), Sch 1(6)
Security Industry Act 1997 (NSW), s 16
Crimes Act 1900 (NSW), s 579
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Firearms Act 1996 (NSW), ss 3, 11, 12, 25,75
Criminal Procedure Act 1986 (NSW), ss 11, 12
Uniform Civil Procedure Rules 2005 (NSW), rr 51.12, 51.27
Interpretation Act 1987 (NSW), ss 21, 33
Firearms and Dangerous Weapons Act 1973 (NSW), ss 22, 40
Criminal Records Act 1991 (NSW), ss 3, 4, 5, 7, 8, 9, 11, 12, 15, 16

Cases Cited:

Bull v Attorney-General for New South Wales (1913) 17 CLR 370
Cameron v James [1945] VLR 113
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Commissioner for Police v Toleaofa [1999] NSWADTAP 9
Commissioner of Police v Eaton [2013] HCA 2; 87 ALJR 267
Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379
DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130
Giorgianni v R (1985) 156 CLR 473
Goliath Portland Cement Co Ltd v Chief Executive of Customs [2000] FCA 1164; 101 FCR 11
Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113
Johnson v Miller (1937) 59 CLR 467
King v R (1986) 186 CLR 423
Kocic v Commissioner of Police, NSW Police Force [2013] NSWADT 146
Melrose Farm Pty Ltd v Milward [2008] WASCA 175; (2008) 175 IR 455
Oliver v Commissioner of Police, New South Wales Police [2007] NSWADT 153
Pearce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 99
Rose v Hvric [1963] HCA 13; 108 CLR 343
Saraswati v The Queen [1991] HCA 21; 172 CLR 1
Wickstead v Browne (1992) 30 NSWLR 1
Ziems v The Prothonotary, Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279

Texts Cited:

Australian Law Reform Commission Report No 37, Spent Convictions (1987)

M Leeming, Resolving Conflicts of Law (2011, Federation Press), pp 7-11

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 February 1991 at 393, 394

Category:

Principal judgment

Parties:

Nedzad Kocic (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
Mr G Bullard (Applicant)
Ms R Graycar (Respondent)

Solicitors:
Kells (Applicant)
Bartier Perry (Respondent)

File Number(s):

CA 2014/38584

 Decision under appeal 

Jurisdiction:

9113

Citation:

Kocic v Commissioner of Police, NSW Police Force [2013] NSWADTAP 53

Date of Decision:

28 November 2013

Before:

Judge KP O'Connor, President

File Number(s):

139026

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was refused a firearms licence by the Commissioner of Police on the basis that his criminal history established he was not "a fit and proper person" and it was "contrary to the public interest" to issue the licence: Firearms Act 1996 (NSW), s 11(3)(a) and (7), respectively. At an interlocutory stage in proceedings before the Administrative Decisions Tribunal, the applicant argued that s 12(c)(ii) of the Criminal Records Act 1991 (NSW) required that no account be taken of any "spent convictions" in determining the applicant's "character or fitness" to be issued a firearms licence. The Tribunal held, notwithstanding the Criminal Records Act, that the "spent convictions" could be considered under s 11(7) of the Firearms Act. The decision was upheld by the Appeal Panel of the Tribunal. The applicant sought leave to appeal. The Commissioner, seeking leave to cross-appeal, argued the exception allowing courts (defined to include tribunals) to consider "spent convictions" under s 16 of the Criminal Records Act applied when the Tribunal was exercising merits review.

The Court held, unanimously granting leave but dismissing the appeal and, by majority (White J dissenting), dismissing the cross-appeal:

(Basten JA; Leeming JA; White J)

1. The reference to "fit and proper" in s 11(3)(a) is not immune from the proscription of reference to "spent convictions" required by s 12(c) of the Criminal Records Act. The two provisions are not inconsistent with each other and - in light of the nature of s 12(c) as an interpretative provision and the legislative history of the Firearms Act - can readily be read together: [42]-[47], [86]-[91], [110].

(Basten JA, Leeming JA agreeing)

2. The prohibition on the use of a "spent conviction" under s 12(c) does not extend to the conduct underlying the conviction: it would be inconsistent with how "conviction" has been defined under the Criminal Records Act and curious results may flow for other statutory provisions if such a construction was followed: [57]-[60]

(White J dissenting)

3. A "spent conviction" includes the conduct underlying the charges giving rise to the spent conviction: [126]

(Basten JA; Leeming JA, White J agreeing)

4. The public interest criterion under s 11(7) does not attract the prohibition under s 12(c) as there is no reference to "character or fitness". The operation of the public interest criterion under s 11(7) is broad and is not qualified by matters excluded under other provisions in s 11: [26], [39], [40], [92]-[93], [127]

(Basten JA, Leeming JA agreeing)

5. The proper construction of s 16 is that the exception to consider "spent convictions" extends to tribunals generally, but not to a tribunal exercising merits review of an administrative decision-maker who is bound by the Criminal Records Act. It would be anomalous if material that the original decision-maker cannot have regard to was available to a tribunal exercising merits review: [76]

(White J dissenting)

6. The limitation imposed by s 12 of the Criminal Records Act is expressly removed by s 16 in proceedings before a court or tribunal. There is no basis for interpreting s 16 as being limited to tribunals not conducting merits review of a decision made by an administrative decision-maker who is bound by the Criminal Records Act: [141]

Judgment

1. BASTEN JA: The scheme for licensing persons to possess and use firearms is regulated by the Firearms Act 1996 (NSW). That Act confers power on the Commissioner of Police to grant or refuse licence applications, but the power to grant an application is tightly constrained: Firearms Act, ss 11 and 12. In particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. The present proceedings involve the interrelationship between the licensing provisions of the Firearms Act and provisions of the Criminal Records Act 1991 (NSW) under which certain convictions are deemed to be "spent", with consequences for their potential relevance under other legislation.

1. The applicant, Nedzad Kocic, seeks leave to appeal from an interlocutory decision of the Administrative Decisions Tribunal (Appeal Panel) handed down on 28 November 2013: Kocic v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 53 (Judge KP O'Connor, President). The Appeal Panel (constituted by the President sitting alone) dismissed an appeal from a decision of judicial member Naida Isenberg, handed down on 25 June 2013: Kocic v Commissioner of Police, NSW Police Force [2013] NSWADT 146. The decision of the judicial member was recorded as follows:

"Under s 11(7) of the Firearms Act, the Respondent is able to tender, and the Tribunal can have regard to, the spent convictions and the conduct underlying those convictions, notwithstanding the provisions of the Criminal Records Act 1991."

1. Both factually and procedurally, the case provides an unattractive vehicle for consideration of the issues raised by the two pieces of legislation: nevertheless, both parties invited the Court to grant leave and resolve what each considered to be a less than satisfactory resolution of the issues raised in the Tribunal.

1. An appeal to the Supreme Court was brought pursuant to s 119(1A) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act") before the abolition of the Tribunal from 1 January 2014 by the Civil and Administrative Tribunal Amendment Act 2013 (NSW), Sch 2.2. Pursuant to the savings and transitional provisions, the right of appeal is preserved: Civil and Administrative Tribunal Act 2013 (NSW), Sch 1, cl 8. Because the Tribunal was constituted by a judge, the appeal should have been instituted in this Court and not in the Common Law Division as occurred; nevertheless, the matter having been transferred to this Court no further jurisdictional issue arises.

1. For the reasons set out below, both parties should have leave to appeal but the appeals should be dismissed. Neither party sought an order as to costs and, accordingly, no order should be made.

Procedural background

1. Section 119(1) of the Tribunal Act provided for an appeal to the Supreme Court "on a question of law, against any decision of the Appeal Panel". With respect to an interlocutory decision, leave was required: s 119(1A). As with any appeal, the parties are required to place before this Court all documents which are necessary for the disposal of the application for leave and, if concurrent hearings are directed, for the disposal of the appeal: Uniform Civil Procedure Rules 2005 (NSW), rr 51.12(2)(e) and 51.27(1)(b). In the present case, the Court was not initially provided with the application for a licence, the decision of the Commissioner, the statement of reasons accompanying the internal review sought under s 53 of the Tribunal Act, the application to the Tribunal, nor the notice of appeal to the Appeal Panel. In the course of the hearing, the parties provided copies of the first three documents.

1. The decision of the judicial member, set out above, permitted the Commissioner to "tender ... the spent convictions and the conduct underlying those convictions". The order in that form was not entirely apt: a party tenders a document, not information or conduct. The reasons of the Tribunal stated that the Commissioner had taken into account certain matters which, it appears, were treated as "spent convictions": that information was presumably gleaned from either the "notice of refusal" under the Firearms Act dated 31 May 2012 and signed by a delegate for the Commissioner of Police, or from the statement of reasons following the internal review, dated 18 October 2012, both of which the parties confirmed had been available to the Tribunal. Whether the Tribunal had any other documentary material or evidence identifying the conduct underlying the convictions was not disclosed in this Court.

1. The Tribunal noted that the Commissioner had refused to issue a licence on the basis that it would be "contrary to the public interest", relying on s 11(3)(a) and 11(7) of the Firearms Act: at [1]. She stated that the Commissioner had taken into account the following, at [2]:

"● a conviction on 6 October 1988 for driving in a dangerous manner;

● a conviction on 8 December 1992 for goods in custody;

● a charge for stating a false name or address to police in respect of which the Applicant was, on 13 December 2000, found guilty but the court in its discretion ordered the charge be dismissed; and

● a charge for driving a vehicle when not licensed in respect of which the Applicant was, on 27 August 2008, found guilty but the court in its discretion ordered the charge be dismissed."

1. The Appeal Panel referred to the same matters. Precisely how they were selected from a lengthy record is by no means clear. The applicant was convicted on 30 October 2001 on 12 charges relating to the possession and use of firearms. The Commissioner noted 11 convictions for traffic offences between 14 August 2000 and 9 October 2009 together with a separate offence of failing to report a currency transaction, for which he was convicted on 19 May 2006.

1. In the reasons for rejecting the internal review, the delegate for the Commissioner stated:

"I note that in addition to your convictions for 12 firearm offences in 2001, you have been convicted of the following 13 charges relating to driving offences [between February 1997 and October 2009].

...

Further, your Traffic Record Report, in conjunction with a COPS Event, reflects that between 1989 and 2001 you were issued with 23 Traffic Infringements and a Waterways Authority Penalty Notice ...

As a result of your traffic convictions and infringements, you have had a drivers [sic] licence application refused in 1997 and your drivers licence has been cancelled, disqualified or suspended 15 times [between 1992 and April 2013].

It is highly relevant that all traffic offences and convictions since 9 April 1999 were committed when you were not the holder of a valid drivers licence."

1. Whether any of these constituted "spent convictions" for the purposes of the Criminal Records Act is unclear. A conviction is "spent on completion of the relevant crime-free period": s 8(1). The relevant crime-free period is 10 consecutive years after the date of the person's conviction, during which period he or she has not been convicted of an offence "punishable by imprisonment": s 9(1). Traffic offences are dealt with as a separate category, to the extent that a traffic offence will not affect the crime-free period of a non-traffic offence, but will affect the calculation of that period with respect to earlier traffic offences: s 11(2). If the offence described as "conduct dealings to avoid overseas transactions requirements" involved an offence under the Financial Transaction Reports Act 1988 (Cth), it is probable that it was an offence punishable by imprisonment. As the conviction was recorded in May 2006, it prevented the firearms offences becoming spent convictions, and would continue to have that effect until May 2016.

1. It is sufficient for present purposes to note that the first conviction (from 6 October 1988) for driving in a manner dangerous does not appear to have been relied on by the Commissioner and it is not apparent that the conviction in December 1992 for goods in custody is a spent conviction. The two matters in which the applicant was found guilty but the charge was dismissed would constitute "convictions" (s 5) and would be spent when made: s 8(2). (Where an offence is proved and the Court imposes a bond, without proceeding to conviction, there is a deemed conviction which is spent when the bond is completed without breach: s 8(4).) In the overall scheme of offending, those two matters would appear to be trivial and the conduct underlying them may well not provide a satisfactory example of the issues sought to be raised on the appeal.

Relevant legal principles

1. Determining the concurrent operation of two statutes of the same legislature may be seen as involving a two stage process, the first stage requiring the resolution of any uncertainty or ambiguity attending the meaning of each statute: M Leeming, Resolving Conflicts of Law (2011, Federation Press), pp 7-11. Only then is it possible to discern whether there is some element of inconsistency which requires resolution.

1. A conflict or inconsistency must be established according to particular principles applicable to provisions of a single legislature. As Gaudron J noted in Saraswati v The Queen [1991] HCA 21; 172 CLR 1 at 17, in a passage quoted in part with approval by Gummow and Hayne JJ in Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 at [18]:

"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other."

1. In Ferdinands, the joint reasons continued at [47]:

"No conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions. If, upon their true construction, there is an '[e]xplicit or implicit contradiction' between the two, the later Act impliedly repeals the earlier."

1. The language quoted in that passage was from Rose v Hvric [1963] HCA 13; 108 CLR 353 at 358. After referring further to the reasoning in Rose, the joint reasons in Ferdinands continued at [49]:

"Reference to 'implicit contradiction' may suggest that it is both permissible and useful to resort to 'covering the field' tests developed in the application of s 109 of the Constitution in deciding whether a later Act impliedly repeals an earlier. It is, however, necessary to recognise that s 109 concerns the paramountcy of a law of the Commonwealth over a law of a State. The question in the present case is not whether one law enacted by one legislature prevails over a law enacted by another legislature; it is whether the presumption that two laws made by the one legislature are intended to work together is displaced."

1. Gleeson CJ writing separately in Ferdinands, noted that it was not suggested in that case that there was "repugnancy between the two State statutes, in the sense that they create conflicting commands, which cannot be both obeyed, or produce legal rights or obligations which cannot be reconciled": at [4]. The Chief Justice identified the problem as one arising out of "such contrariety in the two legislative schemes that, by necessary implication" one excluded the operation of the other. In his conclusion, the Chief Justice used the language of "incompatibility": at [11].

The legislative scheme

1. In undertaking the first stage of the exercise, it is convenient to start with the Criminal Records Act, which deals with a narrow subject matter, but has a broad operation.

(a) Criminal Records Act 1991

1. The subject matter and broad purpose of the Criminal Records Act has been alluded to above. The primary object, as set out in s 3, is as follows:

3 Objects of this Act

(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.

1. The concept of a "relatively minor offence" is an offence for which the person has been sentenced to no more than six months imprisonment: the applicant has served no terms of imprisonment and his convictions are all capable of becoming spent: s 7(1)(a). The circumstances in which a conviction becomes spent have been sufficiently identified at [11] and [12] above. The present case turns upon the consequences of a conviction becoming spent, which are set out in s 12.

12 What are the consequences of a conviction becoming spent?

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.

1. There are exceptions: thus, s 12 does not apply in relation to appointment or employment in certain occupations: s 15. There is a further exception in s 16 which was at the heart of the Commissioner's cross-application.

16 Proceedings before courts

(1) Section 12 does not apply to proceedings before a court (including the giving of evidence) or the making of a decision by a court (including a decision concerning sentencing).

(2) However, a court before which evidence of a spent conviction is admitted must, in appropriate circumstances, take such steps as are reasonably available to it to prevent or minimise publication of that evidence.

1. Although the subject matter and broad purpose of the Act are reasonably clear, its operation, and hence its more specific purposes, is less clear. Its particular operation relevantly for the present case focuses on s 12(c).

1. Section 12 has three limbs, each having a different focus. Thus, par (a) is concerned with potential requirements to disclose information concerning any conviction. (During the argument it was assumed that such information included the fact of the conviction as well as the underlying conduct.)

1. Paragraph (b) focuses on "questions" and is, in a slightly curious sense, definitional. It was assumed in the course of argument that the word "question" meant a question asked of one person by another, rather than the broader sense of an issue. As, according to s 16, s 12 does not apply to proceedings before a court, s 12(b) will have its primary operation in such areas as job applications and interviews of various kinds.

1. Paragraph (c) has a different focus again: it is directed to a reference to a conviction (or to a person's character or fitness) in a provision of an Act or statutory instrument. The first limb, dealing with "conviction", is clearly definitional and uses the language of deeming so as to limit it to convictions other than spent convictions. The term "conviction" is given an extended meaning to include findings that an offence was proved, and of guilt, where the Court has declined to convict: s 4(1).

1. The second limb of par (c) was directly engaged in the present case in so far as the Commissioner had relied upon a provision prohibiting the issue of a licence unless the Commissioner were satisfied that the applicant "is a fit and proper person ...": s 11(3)(a). That, it should be accepted, falls within the kind of reference addressed in par (c). The phrase "character or fitness" is not to be read down in a way which would emasculate the provision: it refers to any provision referring to character or fitness of a person to which a conviction might be relevant. Such a provision neither requires nor permits account to be taken of spent convictions. What is less clear is whether the paragraph, which is definitional in form, applies to the provision of an Act which does not expressly use the language of character or fitness but uses other language, for example that a person is "a risk to public safety", a concept which is closely related to an assessment of character or fitness but does not expressly use those terms. Not to apply par (c)(ii) to such a provision might be seen as undermining the purpose of the prohibition on a semantic, rather than substantive, basis. However, par (c)(ii) adopts a semantic approach: it states how a particular "reference" in a statute is "to be interpreted". It does not fix upon the underlying conduct, which would require that an assessment of character or fitness required by the provision of an Act must not take into account spent convictions.

(b) the Firearms Act

1. The conferral of power on the Commissioner to deal with an application for a licence is primarily contained in s 11 of the Firearms Act, which relevantly provides:

11 General restrictions on issue of licences

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

...

(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

...

(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.

...

(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.

1. There is a further condition, namely that the Commissioner must not issue a licence unless satisfied that the applicant "has a genuine reason for possessing or using the firearm": s 12(1). What may and may not constitute such a reason is further defined in s 12, but is not presently relevant. The significance of s 12 for present purposes is that in forming the requisite opinion as to the applicant's intentions the Commissioner may think it necessary to determine the credibility of the applicant.

1. The structure of s 11 (so far as presently relevant) has three components. First, it confers on the Commissioner a power to issue a licence or refuse an application for a licence: s 11(1). Secondly, it identifies a range of circumstances in which a licence "must not" be issued: s 11(3), (5), (5A) and s 12(1). Thirdly, the Commissioner is given a general power to refuse a licence if he or she considers that the issue of the licence would be "contrary to the public interest": s 11(7).

1. Needless to say, the Firearms Act 1996 was not the first legislation of its kind in this State. The modern form of the legislation commenced with the Firearms and Dangerous Weapons Act 1973 (NSW), which was replaced by the Firearms Act 1989 (NSW), which was in turn replaced by the 1996 Act. Some of the infelicities in the drafting appear to have arisen from a practice of grafting new controls on existing provisions.

1. Section 40 of the 1973 Act made it an offence for a person to carry or use a firearm or have a firearm in his or her possession without a shooter's licence. Section 22, which was the progenitor of s 11, read as follows:

22 Issue of shooters' licences

(1) An application for a shooter's licence shall be made in the prescribed manner and be addressed to the Commissioner.

(2) Subject to this section, the Commissioner may grant or refuse the application.

...

(4) The Commissioner shall not grant an application for a shooter's licence made by a person who -

(a) is not a natural person;

(b) is under the age of eighteen years; or

(c) is the subject of a firearms prohibition order.

(5) The Commissioner shall not grant an application for a shooter's licence unless he is satisfied that the applicant is of good character and repute, is a fit and proper person to hold a shooter's licence and can be trusted to have firearms, not being pistols, in his possession and to use and carry them without danger to the public safety or to the peace.

(6) Without limiting the generality of subsection (2), the Commissioner may refuse to grant an application for a shooter's licence if the applicant has been convicted of an offence under this Act or the regulations or under the former Act.

1. The 1989 Act expanded these controls by including a provision with respect to training and testing (now found in s 11(3)(b) and (3A), but not presently relevant), s 25(3) (equivalent to the present s 11(4)) and, with respect to pistols, a requirement that the applicant have "good reason" for possessing and using the pistol (now found in more general terms in s 12(1)). Section 25(6) provided a general discretion to refuse to issue a licence in terms which mirror s 11(7), without the introductory words in the current provision.

1. The imposition of further controls in the 1996 Act were part of a national response to the Port Arthur massacre. As stated by the Minister in the Second Reading speech, the Act was intended to be part of a comprehensive plan for "tough new gun laws" based on the underlying principle that "the possession and use of firearms is a privilege, not a right, and is conditional on the overriding need to ensure public safety": New South Wales Legislative Council, Parliamentary Debates (Hansard), 25 June 1996, p 3557.

(c) particular provisions: s 11(3)(a)

1. The first provision which can directly engage the Criminal Records Act is s 11(3)(a). If there is a limitation on the material which can be considered for the purpose of that provision, it becomes relevant to consider the relationship between that provision and subs (7).

1. Although it is open to construe subs (3)(a) as identifying two characteristics of an applicant as to which the Commissioner must be satisfied, the preferable reading is that there is only one composite characteristic. That is to read "and" as equivalent to "who", so that the provision should be understood as referring to "a fit and proper person who can be trusted ...". That is to treat the concept of fitness as limited by the relevant purpose of the Commissioner's assessment. By way of illustration, the question whether a person is a fit and proper person to remain a member of the legal profession must be undertaken having regard to the relevant qualities required of a legal practitioner. Kitto J noted in Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279 at 298:

"But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."

1. Some support for this approach may also be obtained from the legislative history. In the 1973 Act, the relevant characteristic required that the applicant is "of good character and repute, is a fit and proper person to hold a shooter's licence and can be trusted ...": s 22(5). The 1989 Act required that the applicant is "of good character and repute and can be trusted ...": s 25(2). The current Act has omitted reference to good character and repute and returned to the language of fitness, preferring language limited to that necessary to ensure the object of the legislation, namely to allow possession and use of a firearm only by a person who is 'fit' in the sense of one who can be trusted to have a firearm "without danger to the public safety or to the peace".

(d) interrelationship of s 11(3)(a) and s 11(7)

1. The next question is whether the fitness of the applicant in that regard can be a factor taken into account by the Commissioner in considering whether the issue of the licence would be "contrary to the public interest", pursuant to subs (7). On one view, the nature of the relevant public interest must always involve the danger to public safety in allowing the applicant to have a licence. On the other hand, it is arguable that the broad discretion to refuse a licence under subs (7) will only arise if the various prohibitions on the grant of a licence are not engaged. Relevantly that means that the Commissioner must have been satisfied that the applicant is a fit and proper person and can be trusted to have a firearm without danger to public safety or the peace, in accordance with subs (3)(a). It also follows that the Commissioner does not have reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms for one of the reasons identified in subs (4). It further assumes that the Commissioner has not been provided with any "criminal intelligence report or other criminal information" permitting the formation of the dual opinion identified in subs (5A).

1. It is true that the conditions specified in subs (4) may not cover the full range of circumstances in which such a risk could arise; it is also true that subs (5A) is limited by reference to the sources of information; nevertheless, as subs (4) expressly states, neither provision could be seen as limiting the generality of subs (3)(a). On this approach, the concerns arising from characteristics of the applicant should have been fully addressed before the Commissioner comes to consider the operation of subs (7). The primary operation of subs (7) would be to allow the Commissioner to reject the application on another basis, for example that the number of licences already issued created an unacceptable risk to public safety and the issue of a further licence was to be refused on that ground. (The example is not intended to indicate any particular view about the legitimacy of the consideration: rather it identifies a ground which appears to be entirely separate from the characteristics of the particular applicant, but one capable of forming an element of the relevant public interest.)

1. An alternative approach would suggest that this reading is too narrow and that, while there may indeed be entirely separate aspects of the public interest to which the Commissioner could have regard, those factors might lead to refusal of an application when combined with characteristics of the applicant, even though the latter would not by themselves result in refusal of the application. On that view, the language of subs (7) is inconsistent with the imposition of a constraint on its operation, based on the presence of other provisions dealing with the characteristics of the applicant. Although the opening words of subs (7) are not entirely apt, they should be understood as indicating an intention that the provision be read in isolation and thus not subject to implied constraints.

1. There is a further (limited) indication that this latter view should be preferred. It arises from the terms of subs (5A), although not added to the section until 2002. Paragraph (a), "the person is a risk to public safety" may be understood as a compact form of subs (3)(a); par (b) reflects subs (7), but within subs (5A) both elements must come together. (The purpose of making special provision of this kind is to allow the Commissioner to protect the secrecy of the basis of the opinion by not being required to give any reasons for the refusal of the licence: subs (5B).) One would not read the two limbs of subs (5A) as entirely independent of each other. Thus, if the Commissioner had criminal intelligence suggesting that the applicant was a risk to public safety, that would undoubtedly form a basis for concluding that the issue of a licence to the person would be contrary to the public interest.

1. The proper reading of s 11 is that no bright line can be drawn between the factors relevant under subs (7) and those which must be addressed under the other subsections. Relevantly for present purposes, there may be characteristics of the applicant which do not lead the Commissioner to refuse a licence under one of the other provisions, but nevertheless permit the refusal of a licence under subs (7). The likelihood of such a situation arising in the present case seems remote: however, one can envisage circumstances where some weight might appropriately be given to spent firearm convictions, including with respect to the credibility of the applicant which may arise under s 12(1).

The interrelationship of the Acts

1. Against this understanding of the separate legislative provisions, the question as to their interrelationship can be addressed. The first question is whether s 12(c) of the Criminal Records Act limits the material to which the Commissioner can have regard when reaching an opinion as to whether the applicant can be trusted to have possession of a firearm for the purposes of subs (3)(a) of the Firearms Act. The short answer must be that the reference in subs (3)(a) to a "fit and proper person" is a reference to the person's "character or fitness" for the purposes of s 12(c). Accordingly, s 12(c) prevents the Commissioner having regard to spent convictions under that provision.

1. The Commissioner resisted this construction on two bases. One is that the Criminal Records Act is a statute of general operation and that the Firearms Act is one having a specific and limited purpose. If the purpose of the Firearms Act would, at least to an extent, be thwarted by the application of the general Act, that operation should be rejected. Secondly, the Firearms Act being later as well as specific legislation, impliedly repealed the breadth of the prohibition imposed by the earlier, general provision.

1. These arguments should not be accepted. So-called principles of statutory interpretation relating to the interrelationship between "general" and "special" statutes and considering "implied repeal" by a later statute which is said to be inconsistent with the provisions of an earlier statute, to which no explicit reference is made, frequently provide little if any assistance in resolving specific cases. The first problem is to determine which was the earlier and which the later statute. To treat the Firearms Act as the later statute because the current legislation post-dated the Criminal Records Act is correct, but only in the most superficial sense. As has been noted, when the Criminal Records Act commenced, the Firearms Act 1989 was in force, and contained similar language to s 11(3)(a) including, indeed, reference to the person's "character". If the effect of the Criminal Records Act was to limit the matters that the Commissioner could take into account under the 1989 Act, there is no reason to suppose that some different effect was achieved by the re-enactment of the provision in relevantly similar language in 1996.

1. Secondly, the distinction between general and special statutes is of little relevance in the present circumstances. Many "general" statutes which operate across a wide area of human endeavour are self-evidently intended to control specific aspects of conduct, including administrative decision-making. Anti-discrimination legislation provides a relevant example. Although it is not necessary to decide the point, it must at least be doubtful that the Commissioner could refuse a licence on the basis that the applicant was a woman (or for that matter a man), pursuant to s 11(7). The Criminal Records Act is analogous legislation. Indeed, in other jurisdictions it has taken the form of an anti-discrimination law: see, eg, Spent Convictions Act 1988 (WA) and the recommendations in the Australian Law Reform Commission, Spent Convictions, Report No 37 (1987).

1. Thirdly, the last point feeds into the question of inconsistency. It should not be assumed that requiring the Commissioner of Police to act in accordance with general law principles and general statutory provisions undermines the purpose and effect of s 11 of the Firearms Act. Indeed, there is a degree of consistency between the two provisions, which is illuminating. Section 11(5)(b) requires the refusal of an application for prescribed offences (including firearms offences) but only in the period of 10 years after the relevant convictions. The temporal limit did not exist in the 1989 Act as enacted (which pre-dated the Criminal Records Act): it was first introduced (though only with respect to apprehended violence orders) by the Firearms Legislation (Amendment) Act 1992 (NSW), Sch 1(6). Significantly, s 11(5)(d), using the present tense ("is subject to a good behaviour bond") is also consistent with the Criminal Records Act. It is a reasonable inference that the temporal limitation was introduced to harmonise the approach under s 11(3) with that of the Criminal Records Act.

1. It follows from the foregoing reasoning that there is no reason to read the reference to fitness in s 11(3)(a) as immune from the proscription on consideration of spent convictions required by s 12(c) of the Criminal Records Act. It would be consistent with the purpose and objects of the Criminal Records Act that s 12(c) operate with respect to the reference to fitness in s 11(3)(a). It can do so without raising any necessary conflict with the objects of the Firearms Act, let alone with the specific terms of s 11(3)(a).

An example of inconsistency

1. Because the foregoing reasons refer to aspects of s 11(5), it is desirable to identify a true inconsistency with respect to that provision, which has been misconstrued in an earlier Tribunal decision relied on in the present case.

1. In Oliver v Commissioner of Police, New South Wales Police [2007] NSWADT 153, Judicial Member Higgins held that the reference to "conviction" in s 11(5)(b) was to be read as a reference to a conviction other than a spent conviction pursuant to s 12(c)(i). There is no doubt that s 12(c)(i) which is, like sub-par (ii), a definitional provision, operates in the manner identified. According to Oliver, a prescribed offence for the purposes of subs (5)(b) which resulted in a finding of guilt with a two year good behaviour bond would, absent any subsequent offence, be "a spent conviction" upon satisfactory completion of the period of the two year bond: s 8(4) of the Criminal Records Act. The result of applying that provision to s 11(5)(b) of the Firearms Act would be to contradict the obligation to refuse a licence imposed by that provision. If the assumption (that s 11(5)(b) was engaged) were correct, there would be a true inconsistency or incompatibility. Each provision would prescribe a period during which the conviction operated, but the periods would differ.

1. However the assumption acted upon by the Tribunal in Oliver was fallacious. The assumption was that s 11(5)(b) applies where an applicant is found to have committed an offence and is placed upon a bond, but is not convicted. That could only be so if the term "conviction", as used in the Firearms Act, were given an extended meaning, as it is in the Criminal Records Act. There is no such extended definition in the Firearms Act. Accordingly, par (b) was not engaged. Significantly, there is separate reference in par (d) to persons subject to good behaviour bonds. The prohibition under subs (5)(d) with respect to such cases only extends while the person "is" subject to a good behaviour bond: that is consistent with the Criminal Records Act which provides that the conviction will be spent upon completion of the bond: s 8(4). It would therefore appear that the conclusion reached in Oliver was correct, but for the wrong reason. The Commissioner was not prohibited from issuing a licence to the applicant on the basis that he had been convicted within a period of 10 years before the application for the licence, because he had not been so convicted. Nor was he still subject to a good behaviour bond in respect of a prescribed offence.

1. It may be noted that the first case in the Tribunal which addressed this problem, and which was treated as erroneous in later cases, dealt with s 16 of the Security Industry Act 1997 (NSW) which provided in similar fashion to the Firearms Act s 11(5) that the Commissioner "must refuse" a licence, if the applicant had been convicted of a prescribed offence, within the period of 10 years before the application was made (par (a)) or within the period of five years where the applicant had been "found guilty (but with no conviction being recorded)" of a prescribed offence. In Pearce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 99, Robinson JM held that, in effect, the terms of s 16(1)(b) of the Security Industry Act should prevail: at [37]. It is not necessary to reach a firm conclusion in respect of that finding: it is sufficient to say that it is not self-evidently wrong, but in any event relates to significantly different legislation. The later cases which rejected that reasoning in relation to the Firearms Act appear not to have identified the significant distinction between the Security Industry Act and the Firearms Act.

1. The significance of these provisions for the present issue is that s 11(5) of the Firearms Act has adopted, in particular cases and with respect to prescribed offences, the same periods as the Criminal Records Act. To that extent they operate harmoniously and demonstrate no inconsistency. If in particular circumstances the provisions cannot operate together and the relevant provisions of the Firearms Act post-date the Criminal Records Act, they should prevail. However, as no such issue arises in the present case, that conclusion must be treated as tentative.

The underlying conduct

1. In the Criminal Records Act, a reference to a "spent conviction" includes a reference to "the charge to which the spent conviction relates": s 4(2)(a). The statutory exclusion therefore extends to the charge. There is a separate question, raised by the finding of the Tribunal in this case, as to whether the exclusion extends to what may be described as the underlying conduct. As a practical matter, there may be a difficulty in the Commissioner relying on this material without giving the applicant an opportunity to answer it. If the conviction followed from a guilty plea, is the plea a matter which the Commissioner can take into account in resolving any dispute between the police material which may be available to him and any denial? If no, and where there is no guilty plea, how is the Commissioner to resolve such a dispute? Strictly, these questions do not arise because the case is concerned with a hearing in the Tribunal, which might at least provide a mechanism for resolving such disputes.

1. At the level of principle, it is arguable that to allow a decision-maker to take account of conduct underlying a spent conviction might be seen as undermining the purpose of the prohibition, because unwarranted assumptions might be based on conduct in the distant past, rather than focusing on better indicators of future conduct. On the other hand, the fact of conviction, regardless of the underlying conduct, allows a rather different kind of prejudice (uninformed by knowledge of the detailed circumstances underlying the conviction).

1. Perhaps curiously, the distinction was not expressly addressed in the Law Reform Commission Report No 37. There is a sentence suggesting that the rationale for "any scheme under which old convictions become spent is based on their general irrelevance to decision making": at par 15. The same passage states:

"This approach is firmly based on the limited predictive value, and hence the limited relevance, of past conduct."

1. To similar effect as that unexplored reference in the Law Reform Commission Report, the objects of the Criminal Records Act refer to a period of "crime-free behaviour." However, the operative provisions deal with a period absent relevant convictions, not, in terms, "crime-free behaviour".

1. These somewhat tenuous indications that, on occasion, conviction and behaviour are equated should not govern the proper construction of the Criminal Records Act for two reasons. First, it is clear that the language of s 12 was deliberately constrained. The Attorney General, in the Second Reading speech expressly noted that the Criminal Records Act dealt with spent convictions quite differently from s 579 of the Crimes Act 1900 (NSW), which provides that where an offence has been dealt with by way of recognizance, after a period of 15 years (the recognizance not having been breached and the person not having been convicted of an offence punishable by imprisonment) the conviction shall "be disregarded for all purposes whatsoever": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 February 1991 at 393.

1. Secondly, and by way of application of the caution dictated by the first consideration, the Criminal Records Act defines "spent conviction" to include a reference to "the charge to which the spent conviction relates" and "any action taken in respect of a breach of prison discipline committed during a period of imprisonment imposed in relation to the conviction": s 4(2). This provision demonstrates a degree of care in identifying the scope of the concept of a "spent conviction". It would not be consistent with that provision to expand the definition to include the conduct underlying the conviction.

1. Furthermore, such a broadening of the operation of the term "conviction" might have curious consequences for s 12(c) which, as noted above, is expressed in definitional terms. There is no reason to assume that references in other statutory provisions to a "conviction" would cover the conduct underlying a particular conviction. Curious results could flow from construing the exclusion more broadly than the defined term. Accordingly, practical considerations aside, the prohibition on the use of a "spent conviction" does not extend to the conduct underlying the conviction.

1. That conclusion means that regardless of the entitlement to rely on spent convictions, the Commissioner was entitled to prove the conduct underlying spent convictions, although the ruling was based on a false premise.

1. In the Tribunal (the point was not addressed by the Appeal Panel) the judicial member was content to apply the reasons given in earlier decisions of the Tribunal (none of which involved the Appeal Panel), and primarily two authorities concerned with the Firearms Act. The first, Oliver, has been referred to above in considering the operation of s 11(5)(b) and (d). The Tribunal noted that the question before it was "whether the conduct that gave rise to that finding [of guilt] is a matter that the [Commissioner] and hence the tribunal can nevertheless have regard to when considering whether the issue of a category AB firearms licence would be contrary to public interest": at [25]. The Tribunal thought that the answer to that question lay in the proper construction of s 12 (and particularly paragraph (a)) in "its application to s 11(7) of the Firearms Act": at [26]. The Tribunal continued at [27]:

"On a literal reading of s 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."

1. The Tribunal said that s 12(a) must be read in the context of the remaining provisions of that section, noted that par (c)(i) applied to the term "conviction" in s 11(5)(b) and that par (c)(ii) applied to s 11(3)(a) of the Firearms Act. The Tribunal then stated at [29]:

"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 s 12(c)(ii) of the Criminal Records Act."

1. While accepting the availability of such reasoning, it is not the preferable construction of the legislation. The statement that the term "conviction" inevitably includes the conduct the subject thereof is to use the word imprecisely and without reference to any particular context. Section 11(5)(b) is itself a good example of a reference to conviction, without any reference, beyond the description of the offence, to the specific conduct which was the subject of the conviction. A second example is to be found in the barrister's discipline case referred to above, Ziems v Prothonotary. The focus of the contest in the High Court was whether the fact of a conviction of manslaughter was conclusive as to Mr Ziems' unfitness to practice as a barrister, or whether it was necessary to look at the underlying facts which gave rise to the conviction. Further, in Oliver the issue in question appears not to have been in dispute, so that the reasoning itself may not have been derived from full argument.

1. The reasoning in Oliver was followed by the Tribunal in the subsequent decision of DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277 (Molony JM). In DP the Tribunal adopted the reasoning in Oliver and stated at [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."

1. This additional reason appears to involve an element of circularity: it assumes that all the elements of the specific conduct alleged will form part of the "charge", as that term is used in s 4(2) of the Criminal Records Act. However, the charge is the statement of the offence for which the person may be convicted. Like the conviction, it usually contains few particulars and only the barest statement of the essential elements of the offence. That follows the provisions in the Criminal Procedure Act 1986 (NSW) which state that "[t]he description of any offence in the words of an Act ... creating the offence, or in similar words, is sufficient in law" (s 11) and that a summary offence or an indictable offence that may be dealt with summarily "is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms": s 12(1). The additional reasoning in DP is insufficient to undermine the conclusion based on principle set out above.

Exception with respect to courts

1. The underlying premise of the Criminal Records Act is that reliance on old convictions for minor offences is more likely to give effect to prejudice than to provide a useful assessment of a person's current character or future behaviour. The exception provided with respect to court proceedings and decisions no doubt reflects the view that judges and magistrates will not act on prejudice or give undue weight to material which is of little relevance.

1. The operation of s 16, however, could, in the present circumstances, give rise to anomalous results. That is because the word "court" is defined to include "a tribunal": s 4(1). It is not in doubt that the Administrative Decisions Tribunal therefore fell within the terms of s 16. The somewhat anomalous result is that where the Tribunal stood in the shoes of an administrative decision-maker, it was entitled to have regard to spent convictions, whereas the original decision-maker was not. (The same reasoning will apply to its replacement, NCAT.) In the present case, it appears that the applicant complained about the decision of the delegate of the Commissioner on the basis that the delegate had taken into account spent convictions. If, contrary to the assumption underlying the legislation, the spent convictions were material to the outcome of the application, arguably the applicant should have succeeded before the Commissioner but may not be able to succeed before the Tribunal on appeal.

1. The answer to this apparent anomaly must turn on the powers of the Tribunal, not the operation of s 16. Thus, whether the Tribunal was permitted to take account of material to which the Commissioner could not have reference would have depended upon the operation of the Tribunal Act, to which no reference was made in the course of argument.

1. The source of jurisdiction of the Tribunal was s 75 of the Firearms Act which permitted a "review" of the refusal by the Commissioner to issue a licence. The powers of the Tribunal on review were dealt with by s 63 of the Tribunal Act. There may have been an issue as to whether the conferral on the Tribunal of power to exercise "the functions" imposed on the administrator who made the decision would allow the Tribunal to consider material which was not available to the decision-maker.

1. The powers of the Tribunal in this case were found in s 63 of the Tribunal Act. So far as relevant, that section provides:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including 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 enactment on the administrator who made the decision.

1. Although subs (1) conferred apparently unlimited powers to have regard to material then before it, including "any relevant factual material", subs (2) identified the nature of the Tribunal's function, namely to "exercise all of the functions that are conferred or imposed ... on the administrator who made the decision."

1. It would seem anomalous if s 12 of the Criminal Records Act constrained the material on which the Commissioner could rely but, absent that material the Commissioner nevertheless refused to grant the licence, and, upon reviewing that decision, the Tribunal was able to rely on the very material (adverse to the interests of the applicant) to which the Commissioner had not had been entitled to have regard. While it was not necessary for the Appeal Panel to decide the point, it showed little enthusiasm ("I cannot accept") for this conclusion.

1. It is not entirely anomalous for an applicant to complain of legal error on the part of the decision-maker, but to see that error corrected on a merits review without the applicant improving his or her position. (That may occur where there has been a breach of procedural fairness at first instance.) However, it is counter-intuitive that an applicant must necessarily be in a more disadvantageous position in the case of spent convictions on review, than before the original decision-maker. There is certainly no incentive for the Commissioner not to rely on spent convictions where, if a refusal to issue a licence is challenged, the Tribunal will validly take precisely the same material into account.

1. On the other hand, if courts (including tribunals) are generally to be trusted to give only such weight as is deserved to spent convictions, the anomaly is diminished. Especially is that so if spent convictions are inherently of little weight.

1. One way of looking at the matter is to treat the functions of the Tribunal as limited to those of the original decision-maker (in this case the Commissioner) and to be exercised according to the same legal principles. On that approach, the operation of the Criminal Records Act is not to be characterised as procedural or evidentiary in effect, but as setting the legal parameters for the Commissioner's powers in dealing with an application for a firearm licence.

1. On that approach, s 16 would be seen to change the ground rules, as it were by a side-wind, without any clear intention that it should have such an operation. Indeed, if that operation had been intended, it might have been expected that it would be adverted to, possibly in s 75 of the Firearms Act, conferring jurisdiction on the Tribunal. That was not done. Accordingly, the proper construction of s 16 is to recognise that the exception extends to tribunals generally, but not to the tribunal exercising merit review of an administrative decision-maker who is bound by the Criminal Records Act.

1. This reasoning is in conformity with the approach adopted by the Appeal Panel at [43]-[44].

Relief

1. The decision of the Appeal Panel to reject the appeal to it left on foot the order of the judicial member as set out at [2] above.

1. The nature of the issue raised before the Tribunal was unclear. The material taken into account identified at [8] above did not readily accord with the material addressed by the Commissioner in either the delegate's original refusal notice or in the statement of reasons on the internal review. The Tribunal recorded at [12] a concession by the Commissioner, apparently directed to the two convictions (in 1988 and 1992) and the charges on which the applicant was found guilty but not convicted (in 2000 and 2008) as constituting spent convictions. The Commissioner's submission, also identified at [12], was that those spent convictions "or" the conduct underlying them (perhaps meaning "and") could be taken into account "under the Firearms Act". The Tribunal accepted that they could not be considered for the purposes of s 11(3)(a): at [20]. The Tribunal accepted, however, that the constraints imposed by s 12 did not operate with respect to the consideration of the public interest under s 11(7) of the Firearms Act. What was not explored was how the four matters relied upon could be taken into account under s 11(7) if the Tribunal were not satisfied that the application had to be rejected under s 11(3)(a), without regard to those matters.

1. Given the lack of attention to these considerations in the Tribunal and before the Appeal Panel, the absence of any precise form of relief sought in this Court and the interlocutory nature of the proceedings in the Tribunal, it is not appropriate for the Court to attempt to formulate in the abstract some form of declaratory relief. The Tribunal hearing the matter will have the benefit of this Court's analysis of the legislation. It is not clear that any legal issue of the kind which might be the subject of an appeal against a final order of the Appeal Panel will arise at the substantive hearing of the matter in the Tribunal. If it does, and either party seeks to allege error of law, the matter can come back for consideration by reference to findings of fact and a crystallised issue of law.

1. In these circumstances, the better approach is to dismiss the appeal and the cross appeal. As noted above, there will be no order as to costs.

1. LEEMING JA: I agree with the reasons and conclusions of Basten JA. I wish to add the following, wholly consistently with his Honour's reasons, on the principal question argued, being the relationship between s 12 of the Criminal Records Act 1991 (NSW) and s 11 of the Firearms Act 1996 (NSW). As Basten JA observes, the starting point is construing each provision.

1. Although the premise of all of s 12 of the Criminal Records Act is that a person has a spent conviction, its three paragraphs apply in two distinct ways. Paragraph (a) confers a privilege upon a person, in respect not merely of the spent conviction, but more broadly, to "information concerning the spent conviction". In contrast, paragraphs (b) and (c) are interpretative, and operate more narrowly. Paragraph (b) applies to "questions" asked of the person's criminal history, and requires such a question to be read as not referring to the spent conviction. Paragraph (c) applies to certain "references" in provisions of an Act or statutory instrument, and requires those references to be construed in a particular way. A reference to a conviction is taken to be a reference to convictions which are not spent convictions, and a reference to character or fitness is not to be interpreted as permitting or requiring account to be taken of a spent conviction.

1. On the other hand, subsections 11(3) and (7) of the Firearms Act are both substantive. Each is a qualification upon the general power to issue a licence conferred by subsection 11(1). Subsection (3) imposes a further precondition to the exercise of the power to issue a licence; it amounts to a mandatory ground for refusal. Subsection (7) creates an additional discretionary ground for refusal, and it follows from its opening words that even if none of the grounds for mandatory refusal in the section apply, the discretionary power to do so remains available, if the Commissioner considers that the issue of the licence would be contrary to the public interest.

1. Two things are immediately apparent. The first is the differential operation of the paragraphs of s 12. The differential operation of s 12(a) on the one hand, as opposed to s 12(b) and (c) on the other, undermines some of the submissions advanced in relation to the "anomaly" between the conviction on the one hand, and the conduct underlying it on the other. On the face of the statutory language, the privilege conferred by paragraph (a) extends to the underlying conduct, while the interpretative rules required by paragraphs (b) and (c) are expressed textually, in respect of "references" in questions and provisions of Acts and statutory instruments. It would be wrong to construe s 12 as if each of its paragraphs applied identically only to spent convictions, or identically to spent convictions and the conduct underlying them, for that would be to elide the textual distinction expressly drawn in the provision. Further, the textual difference between the paragraphs supports the reasoning and conclusion of Basten JA under the heading "The underlying conduct".

1. Secondly, once it is appreciated that s 12(c) is an interpretative provision, whose subject matter is the legal meaning to be given to provisions in other Acts or statutory instruments, the Commissioner's submissions directed to implied repeal fall away. Subsections 11(3) and (7) qualify the Commissioner's power; s 12(c) instructs how references to particular words in Acts and statutory instruments are to be construed. Those provisions may readily be read together.

1. It was common ground that implied repeal requires "very strong grounds" and that the law presumes that statutes do not contradict one another: see for example Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 at [4], [18], [108]-[109] and Commissioner of Police v Eaton [2013] HCA 2; 87 ALJR 267 at [45]-[48]. It will be difficult to identify an intention to displace the presumption that the two laws made by the one legislature are intended to work together when, as here, s 12(c) has no independent operation and presupposes the existence of another Act or statutory instrument whose interpretation it affects. When one law is interpretative while the other creates rights, it will be difficult to conclude that the latter has impliedly repealed the former.

1. Another way of analysing the position, which to my mind is preferable, and indeed potentially more favourable to the Commissioner, is to observe that s 12(c) amounts to a statutory definition in a generally applicable interpretation provision, to the effect that "conviction" bears a special meaning. It would follow that the question is not one of implied repeal, but whether the Firearms Act discloses a contrary intention so as to displace the interpretative provision: Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [40] (McColl JA, Beazley JA agreeing); Melrose Farm Pty Ltd v Milward [2008] WASCA 175; (2008) 175 IR 455 at [7] (Pullin J) and [51] (Le Miere J, Steytler P agreeing). For example, if the question is whether references to a "person" in the Firearms Act extend to corporations and bodies corporate or politic in accordance with s 21 of the Interpretation Act 1987 (NSW), the question is not whether s 21 is impliedly repealed pro tanto, but whether the Firearms Act discloses a contrary intention so as to displace the extended meaning which s 21 would otherwise give to the word "person".

1. Even so, there is no sound basis in s 11(3) for a contrary intention. There is nothing express in its language. There is no basis for an implication that the Firearms Act is a comprehensive and exhaustive code so as to exclude general interpretative provisions. Contrary to the Commissioner's submissions, the principles and objects in s 3 of the Firearms Act are expressed at too high a level of generality to assist: cf Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [6].

1. Further, as Basten JA has observed in detail, the legislative history points powerfully against the Commissioner's construction. There was a close counterpart to s 11(3) in s 25 of the Firearms Act 1989 (NSW). The subsequent re-enactment of the latter provision in s 11(3) of the Firearms Act strongly supports the conclusion that the pieces of legislation are to be read together.

1. Ultimately, the question amounts to whether, on some basis, s 11(3) impliedly excludes the rule of interpretation of general application established by s 12(c) of the Criminal Records Act. It does not do so. The provisions are readily read together.

1. Similar considerations mean that the relationship between s 11(7) and s 12(c) is readily resolved. Section 12(c) operates textually, by imposing an interpretative rule on particular references in Acts and statutory instruments. I would acknowledge that if an Act or statutory instrument used different language to denote the same concept as "character or fitness" (for example, "suitability" or "fit and proper") then it would be at least arguable that the same interpretative rule applied (although decisions such as Goliath Portland Cement Co Ltd v Chief Executive of Customs [2000] FCA 1164; 101 FCR 11 at [29] illustrate that the position may not necessarily be straightforward). However, there is no reference to "character or fitness" in s 11(7), and forming a view that the issue of a licence is "contrary to the public interest" is a very different concept. Indeed, as is clear from the reasoning in Commissioner of Police v Eaton at [27] and [70], "public interest" itself can mean quite different things in different contexts. But it is sufficient for present purposes to observe that it is different from the concept of "fit and proper and can be trusted ..." in s 11(3). Hence s 12(c) does not apply to s 11(7) directly. It is not to the point that an applicant's character or fitness may be relevant to a consideration of the public interest, for s 12(c) applies at the textual level.

1. Finally, can the application of the s 12(c) interpretative rule to s 11(3) be relevant to the construction of s 11(7), such that spent convictions to which the Commissioner may not have regard in the former cannot be relied on in the latter? I do not consider that this assists Mr Kocic. It is to be recalled that subsections (3) and (7) are each qualifications upon the same power to issue a licence conferred by s 11(1). The opening words of s 11(7) ("Despite any other provision of this section") tell against a construction where the exclusion of some matters from one qualification upon power impliedly operates to exclude the same matters from a separate and overriding qualification to the power.

1. WHITE J: I agree that leave to appeal and leave to cross-appeal should be granted, notwithstanding that, as Basten JA has observed, the case provides an unattractive vehicle for considering the issues raised.

1. The decision of Isenberg JM that was the subject of the appeal to the Appeal Panel is set out at para [2] of Basten JA's reasons.

1. Isenberg JM also reached the following conclusion that appears also to be a "decision" and was the subject of submissions by the Commissioner before the Appeal Panel and this Court:

"[20] ... the proper interpretation of s. 12(c) of the CR Act is that neither the Applicant's spent convictions nor the conduct underlying the charges giving rise to those spent convictions is to be considered in applying the 'fit and proper person' test in the Firearms Act."

1. Earlier in her reasons Isenberg JM said that:

"[4] This decision relates to the preliminary issue of whether the spent convictions and the s 10 matters are properly to be taken into account in reaching a decision about whether the Applicant is a fit and proper person or whether the issue of the licence would be contrary to the public interest: s 11(3)(a) and s 11(7) of the Act, respectively."

1. The decisions are a hybrid between a determination of the relevance of material proposed to be tendered and the determination of separate, but not specifically formulated, issues for separate determination.

1. The procedure adopted in this case should not be encouraged. That is so for five reasons. First, however the preliminary issues are determined, the application to the Tribunal will not be resolved. The issues might also be academic. As Basten JA has observed (at [10] and [11]), the delegate for the Commissioner asserted that Mr Kocic had been convicted of other offences, including firearms offences in 2001. There was no argument before this Court, nor, it seems, before the Appeal Panel as to whether any of those other convictions were or were not spent. The argument rather proceeded on the basis that there were some spent convictions and the question was whether the Tribunal was entitled to have regard to any of them, or to the conduct which was the subject of any of them, for any, and if so, which, purpose. The spent convictions might play little or no role in the Tribunal's ultimate decision whatever the decision on the preliminary issues.

1. The second difficulty with the procedure adopted is that the issues have been framed too narrowly. The question of what use can be made of spent convictions might arise not only in relation to the application of s 11(3)(a) and s 11(7) of the Firearms Act. It might also arise in relation to the assessment of the genuineness of the stated reasons for which the firearms licence was sought (s 12(1) of the Firearms Act) and in relation to the exercise of the discretion under s 11(1). The decisions do not address those matters.

1. Thirdly, the parties did not agree on the consequence of the decision that the spent convictions, and the conduct underlying those convictions, could be had regard to under s 11(7) of the Firearms Act. Mr Kocic submitted that the public interest discretion under s 11(7) could only 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 (Commissioner for Police v Toleaofa [1999] NSWADTAP 9 at [25]). The Commissioner contends that the public interest ground is not so limited. The Appeal Panel held that this was a question for the Tribunal to decide on remittal (at [38]).

1. Fourthly, the substantive hearing in the Tribunal has been delayed whilst the parties have debated preliminary issues. There remains the prospect that the party who is ultimately unsuccessful in the Tribunal may seek leave to appeal, or be entitled to appeal on a question of law, to the Appeal Panel of the Civil and Administrative Tribunal, with the possibility of yet further applications to this court. The course taken is not consistent with the quick, cheap and just resolution of the real issues in the proceedings.

1. Fifthly, it is undesirable that the issues raised by this case be determined in the abstract (Wickstead v Browne (1992) 30 NSWLR 1 at 5).

1. Nonetheless, although the course adopted in the Tribunal was not appropriate, leave to appeal and cross-appeal should be given. The delay and additional expense occasioned by the splitting off of abstract issues has already been incurred. The damage would not be undone by the refusal of leave. To the contrary, if this Court were not to express its views on the issues raised, the prospect of further appeals from the ultimate decision of the Tribunal would be enhanced. The time spent and expense incurred by the parties in providing full submissions as on an appeal would be wasted.

Construction issues

1. Questions of the proper construction of the legislation need to be determined before any question of inconsistency, repugnancy or implied repeal. The following issues of construction arise:

1. Whether s 12(a) of the Criminal Records Act impliedly restricts the use that can be made of a spent conviction beyond the restriction imposed by s 12(c).

2. Whether s 12(c) of the Criminal Records Act applies to s 11(3)(a) of the Firearms Act in whole, or only in part.

3. Whether s 12(c) applies to ss 11(7), 11(1) and 12(1) of the Firearms Act.

4. In cases to which s 12(c) does apply, whether the provision applies only to the fact of conviction and not to the conduct the subject of the conviction.

5. Whether public interest considerations in s 11(7) do not include the applicant's fitness or character dealt with by s 11(3)(a).

6. Whether s 12 is wholly inapplicable to the proceeding before the Tribunal by reason of s 16 of the Criminal Records Act.

1. My conclusions on those questions are as follows:

1. The use that can be made of spent convictions is governed by s 12(c). Neither s 12(a) considered alone, nor in conjunction with s 12(b), extends by implication the limitation on the use of spent convictions provided for by s 12(c).

2. Section 12(c) applies to both limbs of s 11(3)(a) and hence applies to the provision as a whole.

3. Section 12(c) does not apply to other provisions of the Firearms Act that do not refer to a conviction nor to a person's character or fitness, even though those are matters that would be relevant to the application of such a provision. Accordingly, s 12(c) does not apply to the application of s 11(7). Nor does it apply to other relevant provisions to which spent convictions might be relevant such as the Commissioner's general discretion under s 11(1), or to his being satisfied as to the genuineness of an applicant's stated reasons for requiring a firearms licence under s 12(1).

4. Where s 12(c) does apply, it applies not only to the fact of conviction, but to the conduct that was the subject of the conviction.

5. The matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3). Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a) and notwithstanding that in applying s 11(3)(a) the Commissioner cannot have regard to the spent convictions or the conduct underlying them.

6. In any event, s 12 of the Criminal Records Act is inapplicable to the proceeding before the Tribunal by reason of s 16.

Section 12(a) of the Criminal Records Act

1. In their written submissions counsel for the appellant relied on s 12(a) and emphasised that pursuant to that provision a person is not required to disclose to any other person for any purpose information concerning a spent conviction. Counsel submitted that s 12(b), 12(c)(i) and 12(c)(ii) provided additional specific circumstances where s 12(a) applies. As I understood their written submissions, counsel contended that because Mr Kocic did not have to disclose his spent convictions for any purpose it was to be implied that no use could be made by a decision-maker of the spent convictions for any purpose. Counsel submitted that s 12(a) was not limited by the paragraphs that succeeded it. There was no elaboration of this argument in oral submissions, but I did not understand it to have been abandoned.

1. I do not accept the submission. Paragraphs 12(a), (b) and (c) deal with separate matters, namely the obligation of disclosure, the construction of questions, and the limitation of the use to which spent convictions can be put in the construction of a provision of an Act or statutory instrument. I do not think that there is any limitation on the use to which information concerning a spent conviction can be put by way of implication from s 12(a) if the person does disclose information concerning the spent conviction although not obliged to do so, or if information concerning the spent conviction is known to another.

1. The extent of the limitation on the use to be made of a spent conviction is governed by s 12(c). In its Report on Spent Convictions (ALRC Report No. 37) the Australian Law Reform Commission proposed that a law be passed that would provide that a person to whom the proposed Act applied who was exercising a power or performing a duty or function in relation to a convicted person should disregard a spent conviction of the person and a fact about a spent conviction of the person (proposed cl 11(1) to the Spent Convictions Bill (ALRC Report No. 37 at p 76). Section 579(1) of the Crimes Act 1900 (NSW) requires that in respect of some convictions or findings, after the lapse of 15 years, the conviction or finding is to be disregarded for all purposes whatsoever. In enacting s 12 of the Criminal Records Act, Parliament adopted a more limited restriction on the use that could be made of spent convictions. Having regard to the limited scope of s 12(c) there can be no basis for an implied wider limitation on the use to which spent convictions can be put from the terms of s 12(a). It might be different if a disclosure were compelled contrary to s 12(a), but it is not suggested that that is this case.

Application of s 12(c) of the Criminal Records Act to s 11(3)(a) of the Firearms Act

1. In my view the whole of s 11(3)(a) is a provision that refers to character or fitness. The second limb of the paragraph is by way of elaboration of the requirement of fitness and propriety as it applies to the possession of firearms. Accordingly, s 12(c) applies to a decision to be made under s 11(3)(a). I agree with the reasons of Basten JA at [35], that "and" in s 11(3)(a) is to be understood as being equivalent to "who".

Application of s 12(c) of the Criminal Records Act to s 11(7) and other relevant provisions of the Firearms Act

1. None of ss 11(7), 12(1), nor 11(1) refers to a conviction or a person's character or fitness. The fact that the spent convictions may be relevant to the exercise of the discretions under s 11(7) and s 11(1) and may be relevant to assessing the genuineness of an applicant's statement of reasons for seeking a firearms licence is insufficient to trigger the operation of s 12(c) of the Criminal Records Act. I agree with Leeming JA's reasons in this respect (at [92] and [93]). I would add that the same reasoning applies not only to s 11(7), but to s 11(1) and s 12(1)).

Underlying conduct

1. I respectfully take a different view on the question whether s 12(c), where it applies, applies not only to the fact of conviction but to the conduct that was the subject of the conviction. That is so for the following reasons. First, because such a construction is open on the express terms of the Act, and being legislation passed for the benefit of persons with spent convictions it should be liberally construed so far as its language allows. Secondly, because such a construction better promotes the object and purpose of the Act. Thirdly, because the contrary construction could work adversely to the person for whose benefit the Criminal Records Act was passed. Fourthly, because the contrary interpretation raises the prospect of the scandal of conflicting judgments. Fifthly, because, contrary to the Commissioner's submission, such a construction is not productive of anomalies.

1. Basten JA (at [63]) observes that the construction given to s 12 of the Criminal Records Act by the Tribunal in Oliver on this issue is an available interpretation, but not the preferable one. I also think that the construction given to the expression "spent conviction" in Oliver is an available one because in ordinary use the term conviction, when applied to a specific event will include the conduct the subject of the conviction (Oliver at [27]). Thus, if a judge says that he or she has taken an adverse view of a witness' credibility for reasons that include the witness' prior convictions, it is not the mere fact of convictions that adversely affects credit, but the assumption made by the judge that the person did the things that were the subject of the convictions.

1. In its limited sphere of operation s 12(c)(ii) is a remedial provision for the benefit of persons whose convictions have become spent. It should be given a liberal interpretation so far as its language allows (Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384; Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113 at 119).

1. Whether this is the preferable construction depends upon whether it would promote the purpose or object of the Criminal Records Act whereas the contrary construction would not (Interpretation Act 1987 (NSW), s 33). Section 3(1) of the Criminal Records Act states that the primary object of the 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."

1. The object stated in the first sentence of s 3(1) is not confined merely to the exclusion of a spent conviction from a person's criminal history. If that were the only relevant purpose or object of the Act then a construction that confined the restriction on use of a spent conviction to the mere fact of conviction would satisfy the purpose. But a primary object of the Act is also to limit the effect of a person's conviction for a relatively minor offence if the person completes a period of crime-free behaviour. That object would not be advanced if a decision-maker could have regard to the conduct the subject of the spent conviction in determining the person's character or fitness. The same reason for not permitting a decision-maker to have regard to the fact of a spent conviction in determining a person's character or fitness (assuming the provision of the Act or instrument makes reference to a person's character or fitness) would dictate that regard not be had to the underlying conduct. If it were otherwise, the restriction would achieve little.

1. If the relevant provision to which s 12(c) applies refers only to a conviction, then the question of underlying conduct may not arise. That is the case in respect of s 11(5)(b) of the Firearms Act referred to by Basten JA at [63]. In the application of s 11(5)(b) no question of underlying conduct arises. If a person has suffered a relevant conviction within the previous 10 years that is not a spent conviction, then s 11(5)(b) applies. But that says nothing as to whether s 12(a), (b) or (c)(ii) of the Criminal Records Act are limited in their application to the fact of conviction and do not extend to the underlying conduct.

1. If regard can be had to the conduct underlying a spent conviction, but not to the spent conviction itself, the person could be placed in an invidious position. She could not say that she had been charged with the conduct and convicted, but the Court convicting her did not consider the offence to be serious because, for example, it ordered her release on entering into a good behaviour bond. Nor could she say that she had paid her debt to society in respect of the conduct without referring to the conviction for which punishment had been imposed and served.

1. Moreover, if regard could be had to the person's underlying conduct, but not to the fact of his or her conviction for it, there seems to me to be no reason why it would not be open to the person to deny the conduct alleged, or to rely on ameliorating circumstances which, if proved at the criminal trial, would have provided a defence. Section 12(c)(ii) must mean that in applying a provision that refers to a person's character or fitness, the decision-maker is not permitted to take account of a spent conviction. That would mean that even if the person had been convicted in a criminal trial between the same parties so that, but for s 12(c)(ii), the person would be estopped from denying the subject matter of the conviction (Cameron v James [1945] VLR 113 at 116), he or she could do so. The re-trial of alleged criminal conduct that was the subject of a spent conviction is not consistent with the purpose of the Criminal Records Act.

1. There is, as Basten JA points out, a distinction between the conviction and the conduct underlying it. Ziems v The Prothonotary is an illustration of that distinction. But Ziems was not concerned with the construction of legislation that forbad regard being had to a conviction. It dealt with a different issue and in my view throws no light on the scope of the limitation on use of spent convictions.

1. In providing that a reference to a spent conviction includes a reference to the charge to which the spent conviction relates, s 4(2) of the Criminal Records Act raises the same question as s 12, namely, whether that includes the conduct that was the subject of the charge. Whilst it is sufficient that a charge describe the alleged offence in the words of an Act creating the offence or in similar words, the charge should refer to the conduct, even in brief terms, that is alleged to have constituted the offence (Johnson v Miller (1937) 59 CLR 467 at 489; Giorgianni v R (1985) 156 CLR 473 at 497; King v R (1986) 186 CLR 423 at 425, 428, 436).

1. The Commissioner submitted that to exclude conduct the subject of a spent conviction as well as the spent conviction itself would create anomalies. Counsel posited the following hypothetical case of a 20-year-old man who put a video clip on YouTube showing his shooting a prohibited pistol at silhouettes of police and other known identities. The video clip is reported to the police. The man is charged with an offence, pleads guilty, and obtains an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (that is, that the court finds the person guilty of an offence, but does not proceed to conviction). Such an order is treated as a conviction for the purposes of the Criminal Records Act (s 5(a)), but is immediately spent (Criminal Records Act, s 8(2)). The Commissioner is aware of the conviction. If that man applied for a licence but had not been charged, then the conduct would be considered under s 11 of the Firearms Act (including s 11(3)(a)). If he were charged and acquitted the conduct could still be considered under s 11(3)(a). If he were charged and convicted but did not get the benefit of a disposition under s 10(1)(a) of the Crimes (Sentencing Procedure) Act the conviction would not become spent immediately and it would be considered as a conviction as well as underlying conduct being considered. Counsel submitted that it would be anomalous if the Commissioner could not have regard to the conduct the subject of the charge and conviction merely because the conviction had been spent when he could do so in the other cases.

1. In my view that submission does not have sufficient regard to the policy of the Criminal Records Act. If the court dealing with the criminal charge had found the person guilty of an offence but did not proceed to a conviction, the offence can be considered to be relatively minor. That is how the Criminal Records Act considers it (s 3(1)). There is certainly no anomaly between the hypothetical case and the last assumed alternative, namely, that the person is convicted but does not obtain an order under s 10(1)(a). There the policy of the Criminal Records Act is that in the circumstances of the hypothetical example regard could be had to the conviction. In one case the conviction is spent. In the other, it is not. Nor is there an anomaly in the comparison with a case where there was no charge. The person in question would not have the benefit of a criminal court's having assessed the seriousness of the conduct and finding that it warranted proceeding under s 10 of the Crimes (Sentencing Procedure) Act. Nor is there an anomaly in the case of the hypothetical acquittal. The reason why in the case of an acquittal there would be nothing to preclude the Commissioner's considering the conduct the subject of the charge, even if the Commissioner had been a party to the criminal proceeding, is the different standard of proof applicable to the criminal trial. The fact that the criminal court might not have been satisfied beyond reasonable doubt that the person in question committed an offence raises no policy consideration against the Commissioner or the Tribunal considering on the balance of probabilities, but having regard to the seriousness of the conduct alleged, whether the conduct in question was engaged in for the purpose of determining the person's fitness or character.

1. In any event, the example is somewhat unreal because the Commissioner could have regard to the conduct in deciding whether to grant a firearms licence pursuant to s 11(1) and 11(7).

1. With respect to those with a contrary view, it seems to me incongruous that in the circumstances of this case, on the application of s 11(3)(a), that although the Commissioner cannot say, "I am not satisfied that you are a fit and proper person to be trusted with the possession of firearms because in 2000 you were charged with stating a false name or address to the police and were convicted of that offence", he could say, "I am not satisfied that you are a fit and proper person to be trusted with the possession of firearms because in 2000 you gave a false name or address to the police".

1. For these reasons I agree with the conclusion of Isenberg JM (at [20]) that neither the spent convictions nor the conduct underlying the charges giving rise to those spent convictions is to be considered in applying the "fit and proper person" test in the Firearms Act, that is, in deciding the issue arising under s 11(3)(a).

Scope of public interest considerations under s 11(7) of the Firearms Act

1. As Leeming JA points out, s 11(7) is prefaced with the words "despite any other provision of this section". The fact that the criterion of fitness in s 11(3)(a) may be relevant to and thus overlap with the public interest ground in s 11(7) does not mean that in applying s 11(7) the Commissioner cannot consider, or reconsider, matters relevant to s 11(3)(a) if they are also relevant to s 11(7). The fact that the materials available to the Commissioner in deciding whether an applicant is a fit and proper person to be trusted with possession of firearms are limited by s 12(c)(ii) of the Criminal Records Act does not mean that the Commissioner cannot reconsider the matters relevant to that question if they are also relevant under s 11(7), which in my view they are likely to be. For the reasons earlier given, s 12(c) of the Criminal Records Act does not limit the materials to which the Commissioner can have regard in considering whether in the public interest the licence should not be issued. I agree with the reasons of Leeming JA on this question. In my view the width of the public interest criterion in s 11(7) is not limited by the earlier provisions in s 11(3), the non-satisfaction of any of which will necessarily result in refusal of the application.

Section 16 of the Criminal Records Act

1. In my view s 12 of the Criminal Records Act does not apply to the proceeding in the Tribunal. Section 16 expressly says that "s 12 does not apply to proceedings before a court". "Court" includes a tribunal (Criminal Records Act, s 4(1)). The Tribunal is to make the correct and preferable decision having regard to the material before it (Administrative Decisions Tribunal Act, s 63(1)). The question before the Tribunal is not whether the Commissioner made the correct decision on the material before him. Section 16 of the Criminal Records Act permits the Tribunal to have recourse to a wider range of materials than was before the Commissioner. Unless there is some implied qualification to s 16(1) according to the nature of the function being exercised by a court (which includes a tribunal), s 16 must apply according to its terms.

1. The language of s 63(1) of the Administrative Decisions Tribunal Act is redolent of the reasoning of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 where their Honours, speaking of s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) said:

"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists (Water Conservation & Irrigation Commission v Browning (1947) 74 CLR 492498, 499-500, 504 at 496,), that regard must be had to the relevant considerations, and that matters 'absolutely apart from the matters which by law ought to be taken into consideration' must be ignored: R v Cotham [1898] 1 QB 802 at 806; Randall v Northcote Corp [1910] 11 CLR 100-110 at 109; Shrimpton v Commonwealth (1945) 69 CLR 613 at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 ; [1965] ALR 1067 at 1071."

1. Subsection 63(2) provides that the Tribunal may exercise all of the functions conferred or imposed by any relevant enactment on the administrator who made the decision. In this case the Tribunal can exercise all of the functions of the Commissioner under the Firearms Act and is subject to the same general constraints of the kind referred to in Drake to which the Commissioner was subject in the exercise of his functions.

1. The Commissioner's function was to determine whether he should issue or refuse the application for a licence. In exercising that function he was required to consider each of the matters in s 11(3) of the Firearms Act, but in considering whether he was satisfied that the applicant was a fit and proper person who could be trusted to have possession of firearms without danger to public safety or to the peace, he was limited in the materials to which he could have regard. Nonetheless, he was required to consider on the materials available to him whether he was satisfied that the applicant was such a fit and proper person. The Commissioner was also required to consider whether any issue of public interest arose and if so to determine whether or not in his discretion he should refuse the issue of a licence on the ground of public interest. He was required to consider under s 12(1) whether he was satisfied that the applicant had a genuine reason for possessing or using the firearm. Having considered all relevant matters the Commissioner was required to decide whether he should issue a licence or refuse the application for a licence. He was required to ignore irrelevant matters.

1. No different function is imposed on the Tribunal. The Tribunal is required to have regard only to those considerations which would be relevant to the Commissioner's decision. But because of s 16 of the Criminal Records Act the Tribunal is entitled to have regard to more materials than are available to the Commissioner in deciding whether it should be satisfied that the applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace.

1. The Appeal Panel said (at [44]) that the Tribunal was to:

"undertake its review function under the same parameters that apply to the administrator, and is faced with the same limitations that affect the administrator, subject only to statutory variations. I do not consider that s 16 was intended to afford a statutory variation to the review of administrative decisions so as to allow consideration to be given to spent conviction information when that was banned before the administrator. To adopt such an interpretation would fundamentally subvert the CRA's protections. The interpretation would be particularly invidious for persons who had properly not disclosed conviction history, had had a licence application refused on other grounds, and then were deterred from applying for a review because there was a risk that the non-disclosed history would be revealed, and worsen their plight. In my view s 16 is directed to conventional situations such as reference to criminal history relevantly in the course of criminal trials, and reference to criminal history in sentencing."

1. Section 16 is not a statutory variation on the "parameters" that apply to the Commissioner if by "parameters" the Appeal Panel meant the relevant considerations to be taken into account in deciding whether to issue a licence or refuse an application for a licence. But it is a statutory variation on the materials that can be taken into account in reaching that decision.

1. Effect is given to the objects of the Criminal Records Act by s 12. But s 12 is itself subject to s 16. In the Second Reading Speech to the Criminal Records Bill the Attorney-General said:

"Courts and Tribunals already apply a well-defined and highly structured set of rules in admitting evidence of convictions and determining the weight it should be given. In the light of these safeguards it is not considered that there is a need for courts or tribunals to be further restricted by the obligation to disregard spent convictions." (Hansard 27 February 1991, p 394).

1. I do not accept that to apply s 16 of the Criminal Records Act in accordance with its terms would fundamentally subvert the protections provided by that Act. It appears both from the terms of s 16 itself and from the Minister's Second Reading Speech that Parliament considered that courts and tribunals could be relied upon not to make inappropriate use of spent convictions. Nor do I accept the argument that if s 12 were not to apply to the Tribunal, an applicant for a licence would be placed in an invidious position. An applicant before the Tribunal would have had his application for licence refused by the Commissioner. The risk of the revelation of a non-disclosed history before the Tribunal would not worsen the plight of such an applicant. The applicant would already have been refused the licence, and would be asking the Tribunal to exercise a fresh discretion. If such an applicant is placed in an "invidious position" it is only because of the express terms of s 16 of the Criminal Records Act.

1. While it is correct that s 16 is directed to criminal history relevant to the course of criminal trials and sentencing, it is not so limited. That is plain from the express terms of s 16 that provide that s 12 does not apply to the making of a decision by a court "including a decision concerning sentencing". Sentencing is only one of the matters to which s 12 does not apply.

1. Basten JA considers (at [73]) that "it is counter-intuitive that an applicant must necessarily be in a more disadvantageous position in case of spent convictions on review, than before the original decision-maker." In my respectful view, the question is one of Parliament's intention. Parliament's intention was that courts, and tribunals, could be trusted to give only such weight to spent convictions as was appropriate. For this reason there is no anomaly if the Tribunal can have regard to materials to which the Commissioner cannot have regard.

1. Basten JA also observes (at [73]) that there is no incentive for the Commissioner not to rely on spent convictions where, if a refusal to issue a licence is challenged, the Tribunal will validly take precisely the same material into account. With respect, that observation suggests that the Commissioner, although not permitted to rely on a spent conviction for the purposes of s 11(3)(a) might nonetheless do so and refuse a licence because he knows that the Tribunal can take the same material into account. That implies that the Commissioner will disregard the limitations placed on him by s 12 of the Criminal Records Act in making his decision. Whilst that is a theoretical possibility, I see no reason to assume that the Commissioner would act otherwise than as required by law. More relevantly, I see no basis to assume that in enacting s 16 Parliament might have assumed that the original decision-maker might disregard the constraints imposed on him or her if an appeal lay to a tribunal to make a decision afresh where that tribunal was not subject to the same constraints.

1. For the reasons above (at [129]-[134]) I do not accept that s 12 of the Criminal Records Act sets the "legal parameters" for the Commissioner's power in dealing with an application for a firearms licence, if that expression refers to more than the materials to which regard may be had.

1. The question then is whether there is an implied limitation in the Criminal Records Act to the kind of matters before a tribunal to which s 16 applies. There is nothing in the Criminal Records Act itself that suggests that s 16 is limited to tribunals who are not conducting a merits review of a decision made by an administrative decision-maker who is bound by the Criminal Records Act. Unless a tribunal were confined to using the same materials as the decision-maker, there is no reason to imply such a limitation. If a tribunal is so confined, the limitation will be imposed by the law governing the tribunal's powers.

1. For these reasons I consider that notwithstanding the Commissioner cannot have regard to the spent convictions, nor to the conduct underlying the spent convictions, when deciding if he is satisfied that an applicant for a firearms licence is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace (s 11(3)(a)), the Tribunal is not subject to that restraint.

Inconsistency

1. I agree with the reasons of both Basten and Leeming JJA that there is no inconsistency between the provisions of the Criminal Records Act and the Firearms Act and that the Firearms Act does not disclose a contrary intention to displace the interpretative provisions in the Criminal Records Act in their application to the provisions of the Firearms Act with which this appeal is concerned.

1. I would only add that the Appeal Panel recorded (at [21]) that in submitting that the Firearms Act was inconsistent with the Criminal Records Act the Commissioner adopted a view expressed in Pearce v Commissioner of Police, NSW Police Service that had not since been followed in the Tribunal.

1. Pearce was not concerned with the Firearms Act. It was concerned with s 16(1)(a) and (b) of the Security Industry Act 1998 (NSW). Section 16(1)(a) and (b) of that Act then provided (and still provides):

"16 Restrictions on granting licence-criminal and other related history

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) 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 in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or

..."

1. The offence in question in Pearce was an offence prescribed by the regulations.

1. In Pearce the Tribunal found that Parliament intended both s 12 of the Criminal Records Act and s 16 of the Security Industry Act to operate together and that, to the extent that they overlapped, one should be subject to the other. The Tribunal found that s 12 of the Criminal Records Act should be read as being subject to s 16(1)(b) of the Security Industry Act (at [36] and [37]). Basten JA has said (at [51]) that it is not self-evident that the conclusion of Robinson JM in Pearce is wrong, but his Honour notes that the decision relates to significantly different legislation. I would go further. In Pearce, s 16(1)(b) of the Security Industry Act required the Commissioner to refuse a licence if within five years the applicant had been found guilty of an offence for which no conviction had been recorded if that offence were one prescribed by regulations relevant to the class of licence sought. That section is inconsistent with s 8(2) and s 12(c)(i) of the Criminal Records Act. Under s 8(2) such a conviction is a spent conviction. There is a direct inconsistency between s 12(c)(i) of the Criminal Records Act and s 16(1)(b) of the Security Industry Act. The decision in Pearce was correct. But this does not avail the Commissioner because there is no such inconsistency in the case of the provisions of the Firearms Act with which this appeal is concerned.

Conclusion and orders

1. For these reasons I would make the following orders:

1. Grant leave to the applicant and the respondent to appeal and cross-appeal.

2. Order that the appeal be treated as having been instituted and determined instanter but dismiss the appeal.

3. Order that the cross-appeal be treated as having been instituted and determined instanter.

4. Order that the cross-appeal be allowed.

5. Order that the decision of the Appeal Panel be set aside and in lieu thereof order that the decision of the Tribunal constituted by Isenberg JM of 25 June 2013 be set aside and in lieu thereof order that the Tribunal can have regard to spent convictions (within the meaning of the Criminal Records Act 1991 (NSW)) and the conduct underlying those convictions, to the extent that they may be relevant to the decision to be made by the Tribunal under the Firearms Act 1996 (NSW).

6. No order as to the costs of the appeal and cross-appeal.

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Amendments

14 July 2015 - [91] Amending CRA to read Criminal Records Act.

Decision last updated: 14 July 2015