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

[2013] NSWADTAP 53

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Kocic v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 53
Hearing dates:	14 October 2013
Decision date:	28 November 2013
Jurisdiction:	Appeal Panel - Internal
Before:	Judge K P O'Connor, President
Decision:	Interlocutory appeal dismissed. Application remitted to Tribunal.
Catchwords:	OCCUPATIONAL LICENSING - Firearms - Whether administrator may have regard to spent conviction history - statutory interpretation - relationship of spent convictions law with firearms law - administrator must disregard history in relation to fitness - may have regard to history in exercising public interest discretion - appeal dismissed - matter remitted: Firearms Act 1996, s 11(3), s 11(7), s 16; Criminal Records Act 1991, s 12, s 13.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Crimes Act 1914 (Cth) Criminal Records Act 1991 Firearms Act 1996 Security Industry Act 1997 Spent Convictions Act 1988 (WA)
Cases Cited:	Commissioner for Police v Toleafoa [1999] NSWADTAP 9 DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277 Goodwin v Phillips (1908) 7 CLR 1 Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358 Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153 O'Sullivan v Farrer (1989) 168 CLR 210 Pearce v Commissioner of Police, NSW Police Service [2000] NSWADT 99 Saraswati v The Queen (1991) 172 CLR 1 Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221
Category:	Interlocutory applications
Parties:	Nedzad Kocic (Appellant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel I Lloyd QC with D Accoto (Appellant) R Graycar (Respondent) A Bye, Kells The Lawyers (Appellant) J Mattson, Bartier Perry (Respondent)
File Number(s):	139026
Decision under appeal	Citation: Kocic v Commissioner of Police, NSW Police Force [2013] NSWADT 146 Date of Decision: 2013-06-25 00:00:00 Before: General Division File Number(s): 123327

reasons for decision

1. The appellant is a review applicant who is challenging the decision of the Commissioner of Police, as administrator of the Firearms Act 1996 ('FA'), refusing his application for a firearms licence Category 1A/B/C. The Commissioner took into account the appellant's criminal history. The appellant submitted to the Tribunal at first instance that this was unlawful, having regard to the protections on spent conviction information conferred by the Criminal Records Act 1991 ('CRA').

1. The Tribunal agreed with the submission in relation to one of the two statutory grounds that the Commissioner relied upon (FA, s 24(3)(a)) but not the other (FA, s 24(7)). These provisions state:

(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,

...

(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.

1. The appellant appeals the Tribunal's ruling as it relates to s 24(7). The Commissioner agrees with the Tribunal's reasoning on that point, but has filed a notice of contention disputing the Tribunal's reasoning in relation to s 24(3)(a). The Commissioner's position is that the CRA has no application to administrative decision-making under the FA.

1. The appeal is an interlocutory one, for which leave to proceed has been granted (Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2A)), and the Panel is constituted as permitted by a presidential member sitting alone (s 24A(2)(a)).

1. The appellant's criminal history comprises a conviction in 1988 (driving in a dangerous manner), a conviction in 1992 (goods in custody), and findings of guilt without conviction in 2000 (stating false name and address to police) and again in 2008 (driving a vehicle when not licensed).

1. The parties have made detailed submissions, and both were represented by counsel.

1. I will not repeat here all the detail given in the Tribunal's reasons as to the CRA's scheme. The four items of criminal history, including the two findings of guilt without entry of convictions, all constitute 'convictions' within the extended meaning found in the CRA, s 5. Further, all of them are 'convictions' that are capable of becoming 'spent' under the CRA. None of them fell within any of the exclusions or limitations from protection (s 7).

1. In the case of the findings of guilt of 2000 and 2008, they became 'spent' immediately: see s 8(2). In the case of the convictions of 1988 and 1992 they became 'spent' in 2002, after ten years had passed in relation to the second conviction: see s 9(1). Furthermore, '[a] conviction which is spent is not revived by a subsequent conviction' (s 8(6)).

Tribunal's Reasoning

1. The principal objective of the CRA 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': s 3(1).

1. The Tribunal reached its conclusion differentiating between the two grounds after having regard to the CRA's key provision, 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. Questions inquiring as to criminal history are common in contexts such as applications for employment, applications for insurance and applications for statutory licences (as here).

1. It will be seen that paras (a) and (b) of s 12 focus on the right of the convicted person. The first provision allows for - what has sometimes been called - the 'statutory lie' and the second provision confines the meaning to be given to generally-expressed questions asked of the convicted person.

1. Paragraph (c)(i) applies the same limitation as (b) to statutory references to convictions. Paragraph (c)(ii) applies the limitation to statutory provisions relating to 'character or fitness'.

1. Paragraph (c)(ii) is the only provision that refers to the exercise of discretion by a decision-maker: see the words 'is not interpreted as permitting or requiring account to be taken of spent convictions' (emphasis added).

1. This gap leaves open the interpretation that this Tribunal has preferred at first instance, namely that taking account of spent convictions is barred in the assessment of character and fitness but it is not barred in the case of other permitted grounds of assessment such as, here, whether the grant of the licence would be 'contrary to the public interest'.

1. In contrast to some laws in other jurisdictions there is no primary broad restriction requiring decision-makers to disregard spent convictions (cf. Commonwealth Crimes Act 1914, ss 85 ZV, ZW; the broad anti-discrimination protections given by Western Australian law, Spent Convictions Act 1988, ss 17 ff).

1. The Tribunal has consistently applied the following reading to these provisions. A person with the appellant's history is not required to disclose any of it (paragraph (a)), and is entitled to construe a question expressed in general terms about conviction history so as not to apply to any matter that constitutes a spent conviction (paragraph (b)). So far as statutory references to convictions are concerned, they are to be read down to apply only to convictions that are not spent (paragraph (c)(i)). In relation to exercises of administrative discretion, a reference to a person's character or fitness is not to be interpreted as permitting the administrative decision maker to take into account spent convictions.

1. The result is that it has consistently ruled that a decision maker cannot have regard to spent conviction information when applying a provision that refers to fitness and character. Similarly the Tribunal has consistently ruled that the reference to fitness and character must be express (or necessarily to be implied), with the result that exercises of discretion based on other heads of power are not circumscribed if conviction information could properly be seen as relevant. See for example, DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277 at [33] ff; Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153; Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358 (before me); and Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221.

1. The Tribunal's decision was in line with these authorities. Both parties in effect invite me, sitting as the Appeal Panel, to reject that line of authority.

Commissioner's Case

1. Ordinarily I would begin by examining the appellant's grounds of appeal. However in this case the Commissioner's submissions are more fundamental. The Commissioner submits that the Tribunal erred in giving any role to the CRA in the administration of the FA. I will deal with the Commissioner's submissions first.

1. The Commissioner submits that because the FA is 'inconsistent' with the CRA, it, as a later Act, should be preferred. The Commissioner adopts the view expressed in Pearce v Commissioner of Police, NSW Police Service [2000] NSWADT 99, since not followed in the Tribunal. (The decision was disapproved in the line of authority beginning with Stranges, and set out in para [11].)

1. In Pearce the Tribunal referred to the law's approach of giving preference to the more recent statute where its provisions are in conflict with an earlier statute, and the further approach that if the later statute is wholly inconsistent the former is to be treated as repealed by implication, referring to dicta in the leading case, Goodwin v Phillips (1908) 7 CLR 1, per Griffith CJ at 7, per Barton J at 10 and per Isaacs J at 16. The Commissioner's submissions took me to a number of authorities applying Goodwin v Phillips.

1. However the starting point in the consideration of statutory provisions said to be in conflict with each other is not Goodwin v Phillips. It is as stated by Gaudron J in Saraswati v The Queen (1991) 172 CLR 1 at 17:

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 both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other ... More particularly, an intention to affect the earlier provision will not be implied if the later is of general application ... and the earlier deals with some matter affecting the individual ... . Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation.

1. The CRA is legislation that serves important social objectives in relation to the protection of offenders from prejudice in decision making (disproportionate emphasis being given to old convictions as a measure of suitability) and in that way promotes the rehabilitation of offenders. It is beneficial legislation and should not lightly be read as inconsistent with, or repealed by, later legislation.

1. In Pearce there were two statutes both dealing with the subject matter of 'convictions', the CRA and the Security Industry Act 1997 (SIA). The Tribunal was seeking to reconcile the difference between the date a Children's Court conviction was to be treated as spent and the less generous setting of the date that an old offence was treated as mandatorily disqualifying a person from a licence under the SIA.

1. Here there is no clash of this nature. There is nothing in the provisions under notice in the FA that might be said to give extended operation to a spent conviction.

1. The Commissioner nonetheless submitted that the FA stood apart from all other licensing legislation because of the circumstances that surrounded its drafting (national response to the Port Arthur massacre), its focus on protecting the community from the misuse of firearms and the complexity and detail of its regulatory provisions. The Commissioner repeatedly submitted that the legislation conferred a 'privilege' and accordingly the exercise of any discretion ought not be regarded as circumscribed by the CRA.

1. I accept what was said about the legislative background to the law. It introduced significant restrictions on the ability of individuals lawfully to possess and use firearms, as compared to previous laws on the subject.

1. The FA has no express terms constraining the operation of the CRA. The CRA has a regulation making power that allows for exclusions to be applied. The regulations made pursuant to s 25(3) do have a number of express exclusions (several examples of express exclusions were itemised in Mahabir at [20]), but none include the firearms legislation. In my view the Parliament, in passing the CRA, contemplated that any exceptions from the basic protections would ordinarily be effected by express exclusions made by regulation.

1. Moreover, it can be said of any licensing scheme that it confers a privilege and does not confer a right. Were the argument put on this occasion by the Commissioner to be acceded to, a similar argument would be difficult to resist across the host of other licensing schemes to which this Tribunal is connected (an example of one obviously concerned with community safety is explosives licensing, another which has a significant community safety component is the regulation of passenger transport driver authorities, i.e. taxi drivers, long distance coach drivers, tow truck drivers). In my view the Parliament cannot reasonably be presumed to have intended that in passing the firearms legislation it intended to set at naught the limited protections given in relation to conviction history by the CRA. In any case even if that could be discerned to be Parliament's intention, there is nothing in the text of the firearms legislation to suggest that it intended to displace or override a general, beneficial law of the kind that CRA is.

1. Another argument put by the Commissioner related to the breadth of the language used in the FA s 11(3)(a) ground. To reiterate, the discretion to refuse is to be exercised if the Commissioner is not 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'. The Commissioner argues that the reference to whether a person 'can be trusted' (etc) alters the character of the discretion, and it is not one exclusively concerned with character and fitness, and therefore does not fall within the scope of s 12(c)(ii) of the CRA.

1. In my view, the two elements of the provision do not go to separate subjects, they are interdependent, and the reference to trustworthiness, is simply reinforcing the point that character and fitness are to be assessed having regard to the community protection objectives that the FA upholds. This is consistent with the basic proposition that the assessment of a person's character or fitness is to be done having regard to the objectives of the statutory scheme. Character and fitness assessments will vary in their intensity as between different categories of licence holder having regard to the nature of the tasks allowed to be performed by the licence and the risks to the community that flow from misuse of the licence.

Appellant's Case

1. The Tribunal has consistently reiterated that a discretion that concerns itself with the 'public interest' is necessarily a wide one, often citing a passage from the Appeal Panel's reasons in Commissioner for Police v Toleafoa [1999] NSWADTAP 9 at [25], which is set out at [24] in the reasons presently under notice.

1. In that regard, I accept the appellant's submission that the considerations seen as bearing on the public interest must be ones that may properly be regarded as relevant, having regard to the scope and purpose of the relevant enactment, here the FA. See, for example, O'Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ at 216:

[T]he expression 'in the public interest, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ...

'in so far as the subject matter and scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492], per Dixon J at 505.

1. The appellant's submissions raise a further possibility, that it would be unfair to allow an administrator to make a decision on the basis of character and fitness but attach to it the label 'public interest' to get around the restriction imposed by CRA s 12(c)(ii), and thereby achieve the 'ulterior purpose' of exercising the fitness and character discretion by reference to information that would have been proscribed had that discretion been exercised. Were a decision maker to have regard to character and fitness as part of a public interest assessment, and bring to bear in that regard a spent conviction, the effect might be to subvert the protection given by paragraph (c)(ii). Therefore it is said, any discretion to which character and fitness can be said to be relevant should be read down so as to ensure that the spent conviction history is not allowed to be taken into account. In my view this submission is consistent with the spirit of the legislation, its rehabilitation objectives and the avoidance of unfair prejudice in decision-making that the law seeks to promote.

1. I am faced, however, as I see it, with the apparent narrowness of the words used in paragraph (c)(ii). They limit the restriction to circumstances where there is 'a reference in the provision to the person's character or fitness'. They clearly apply to any provision that makes express reference to a person's character and fitness. It may be that a clause could fall under this description even though it did not use the specific words 'character' or 'fitness', but fairly construed the words that were used related to the subject of 'character' or the subject of 'fitness'. I do not regard the words 'public interest' as a synonym for 'character' or 'fitness'.

1. The Appeal Panel referred to the relationship between 'character' based grounds for refusal and 'public interest' based grounds in Toleafoa at [25] when it said:

'As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.'

1. It is for the Tribunal, on remittal, to decide whether the 'public interest' ground was not properly invoked, and the only discretion that might properly have been relied upon was the character and fitness discretion.

Other Submissions

1. The appellant's submission also referred to CRA, s 13, and its prohibitions on disclosure of spent conviction information:

13 Unlawful disclosure of information concerning spent convictions

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

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

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

(3) It is not an offence for an archive or library (or an authorised officer of an archive or library) to make available to a member of the public, or to another archive or library, in accordance with the normal procedures of the archive or library, material that is normally available for public use and that contains information relating to a spent conviction.

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

(4A) It is not an offence for a person to make information relating to a spent conviction available in accordance with section 33, 34 or 40A of the Child Protection (Working with Children) Act 2012.

(4B) It is not an offence for a public authority or other government agency that has a record of a spent conviction (or an authorised officer of the authority or agency) to make information about the conviction available to the person who was convicted.

(5) In this section:

law enforcement agency means any of the following:

(a) the NSW Police Force,

(b) the Australian Federal Police,

(c) the police force of another State or a Territory,

(d) the Australian Crime Commission,

(e) the Australian Bureau of Criminal Intelligence,

(f) the National Exchange of Police Information,

(g) the Independent Commission Against Corruption or a similar body established under the law of another legislature in Australia,

(h) the New South Wales Crime Commission or a similar body established under the law of another legislature in Australia,

(i) the Attorney General for the Commonwealth or for a State or Territory,

(j) persons employed in the Attorney General's Department or a similar Department of the Commonwealth, another State or a Territory, or employed in a body administered by such a Department, being persons whose primary function is the institution or conduct of proceedings for offences,

(k) the Office of the Director of Public Prosecutions or a similar body established under a law of another legislature in Australia,

(l) the Director of Public Prosecutions, or a person performing a similar function, appointed under a law of another legislature in Australia,

(m) a Crown Prosecutor,

(n) an Australian legal practitioner to the extent to which the Australian legal practitioner is engaged by or on behalf of the Crown to prosecute an offence,

(o) a person or body prescribed for the purpose of this definition by the regulations.

1. The Commissioner appears to have taken the view that it was permissible for the officer in charge of the Criminal Records Section to make untrammelled disclosure of conviction history to the registry that handles firearms licensing applications, presumably on the premise that the Registry is to be regarded as forming part of the 'NSW Police Force'. Many of the other exceptions have as their focus operational policing as distinct from licensing functions housed in a law enforcement agency. The appellant's submission argues that it was wrong for the Commissioner to allow the data to be used in the administration of the licensing function. In my view s 13 operates separately from s 12. As previously explained, s 12 gives wide rights of non-revelation to a person answering questions. It only deals in the limited way stated by s 12(c) in regulating the use by decision makers of information they have by other means. The provision does not speak to circumstances where the decision maker might have acquired the information unfairly or unlawfully (provisions in privacy and personal data protection laws typically deal with this subject).

1. Finally, the Commissioner referred to s 16(1) of the CRA which provides:

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).

1. 'Court' has an extended meaning that includes tribunals (CRA s 4(1)).

1. It is argued that the CRA therefore has no application to proceedings before a court or tribunal, including this Tribunal. Even if the CRA is applicable to the Commissioner (not conceded by the Commissioner), it is still open to the Commissioner and the Tribunal once the matter reaches the Tribunal for it to have regard to spent conviction information. In my view, this submission is wrong. The Tribunal is a review authority in relation to the administrative decision of the Commissioner. To use a well-worn expression, it 'stands in the shoes' of the administrator. It is vested with the powers and functions of the administrator for that purpose (see generally ADT Act s 63(2)). It can, as submitted by the Commissioner, have regard to new or fresh information which is relevant and post-dates the administrator's consideration of the matter, applying s 63(1).

1. In my view the proper interpretation of the scheme of the ADT Act is that the Tribunal is 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 any 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 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.

Order

Interlocutory appeal dismissed. Application remitted to Tribunal.

Decision last updated: 28 November 2013