Roc co Carnes i v The Commissioner of Po li ce

[2022] NTLC 8

CITATION:       Roc co Carnes i v The Commissioner of Po li ce [2022] NTLC 008 PARTIES:  ROCCO CARNESI

V

COMMISSIONER OF POLICE

TITLE  OF CO URT :  FIR EA RMS APPEAL TRIBUNAL

JURISDIC TION: Firearms Act (NT)

FILE NO(s): DELIVERED ON:

2022-00456-LC

25 May 2022

DELIVERED AT :  Darwin

HEARING DATE(s): JUDGMENT OF:

6 April and 12 May 2022

Chief Jud ge Elizabeth Morris (Chairperson)

CATCHWORDS:

ADMINISTRATIVE LAW - TRIBUNALS - APPEALS - FIREARMS ACT (NT) 1997 - STATUTORY INT ERPR ET ATI ON

Notice of appeal - refusal to grant firearms employee licence - meaning of " express ly provided" - meaning of " any other Act" - Second Reading Speech - non-reviewable decision - non-appellable decision

Fir earms Act 1997 (NT) s 10(8A), 51(1), 93F .

Interpretation Act 1978 (NT) , s 62B.

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Re ve nue (NT) (2009) 239 CLR

27 .

Parks and Playgrounds Movement Inc v Newcastle City Council [20 IO] NSWLEC 231. Explanatory Stateme nt , Firearms Legislation Bill 2019 (NT) Serial I 06, 8.

Northern Terr itory , Parliam entary Debates , Legislative Assembly, 28 May  2003 , 4084- 4087 (Paul Henderson).

REPRESENTATION:

Counsel:

Appellant: Respondent:

R Murphy J Ingrames

Solicitors: Appellant: Respondent:

Murphy & Associates

Solicitor for the Northern Territory

Judgment category classification: Judgment ID number:

Number of paragraphs:

B

[2022} NTLC 008

31

IN THE FIREARMS APPEAL TRIBUNAL AT DARWIN IN THE NORTHERN TERRITORY OF AUSTRALIA

2022-00456-LC BETWEEN:

ROCCO CARNES!

Appellant AND:

COMMISSIONER OF POLICE

Respondent

REASONS FOR JUDGMENT (25 MAY 2022)

THE TRIBUNAL

CHIEF JUDGE ELIZABETH MORRIS (CHAIRPERSON)

INTRODUCTION

1.      An appeal has been lodged pursuant to s 51( 1) of the Firearms Act 199 7 (NT) (the Act) with the Firearms Tribunal against  a decision of the Commissioner of Police.

51 Notice of appeal

(I) Except as otherwise expressly provided, a person aggrieved by a decision or action of the Commissioner under this Act may appeal to the Tribunal against the decision or action.

2.      The Respondent has submitted that the appeal is not available to the Appellant due to the prohibitive provisions of the Act in relation to certain decisions of the Commissioner. 1

1 Firearms Act 1997 (NT), s 93F.

3.      The Appellant submits that any prohibition does not apply to this appeal.

4.      The Act allows a question of law or procedure to be determined by the Chairperson alone, without the need to convene the Tribu na l. 2

5 This is an appropriate question of law to be heard and determined by the Chairperson alone.

APPLICATION AND THE DECISION

6.     The Notice of Appeal indicates that Mr Carnesi received notice of a decision made by the Commissioner of Police on l O February 2022. This decision was a refusal to grant the Appellant's application for a firearms employee licence for Austop Security and Austop Safari.

7.      Whilst a copy of the decision of the Commissioner is not before the Tribunal, it is not disputed that the Commissioner's decision was in purported compliance with s l 0(8A) of the Act.

10      General restrictions on grant of licence

(8A) The Commissioner must refuse to grant a licence if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information  the Commissioner holds about the applicant or representative, that:

(a)the applicant or representative is a risk to public safety; and

(b)the grant of the licence would be contrary to the public interest.

THE PRELIMINARY QUESTION OF LAW

8. Whilst s 51 of the Act provides an avenue for appeal of a Commissioner's decision, s 93F of the Act states:

2 Firearms Act 1997 (NT), s54B(l ).

93F        o  review  of  certain  decisions by    ommissioner

Despite any other Act or law of the Territory (including the common law):

(a)    no person or body is entitled to investigate, inquire into, review  or otherwise call into question a decision of the Commissioner under section l0(8A), 33(3A) or 40A(l); and

(b)   no proceedings for an appeal, an injunction, a declaration or an order for prohibition or mandamus are to be brought in relation to a decision of the Commissioner mentioned in paragraph (a).

THE APPELLANT'S CASE

9.      It is the Appellant's case that such an appeal is permitted.

10.   The words 'except as otherwise expressly provided' were inserted into s 51(1) in 2019, at the time of amendments related to the introduction of the Northern Territory Civil and Administrative Tribunal (NTCA T) as an avenue of review for some decisions pursuant to the Act. Such decisions became 'reviewable decisions'. The decisions which are reviewable under the Act are firearm prohibition orders under s 49E. Thus in the Act itself there is no other 'expressly provided' avenue for an appeal that should be considered.

11.   The Appellant relies on the words "Despite any other Act or law of the Territory" ins 93F. These words, it is submitted, mean the section precluding an appeal for decisions under ss 10(8A), 33 (3A) or 40A(l ), do not refer to the Firearms Act itself, but to all 'other' Acts and the common law. The purpose of the words are to limit the scope of the subsequent words to 'other Acts' which might have powers of investigation, inquiry, review or otherwise call into question a decision of the Commissioner under those sections. Thus the only proceedings for an appeal are under this Act, and previously provided by in s 51.

THE RESPONDENT'S CASE

12. It is the Respondent's submission that s 93F does prevent any appeal on the Commissioner's decision on the ground of s 10(8A).

13.   The ordinary construction of the words and consideration of the text leads to the conclusion that the Commissioner's decisions under ss 10(8A), 33(3A) or 40A(l) are not able to be appealed. Whilst many decisions  made under  the  Act are subject to appeal to the Tribunal, those particular provisions are not. Reference to 'any other Act' does not change the meaning or limit the prohibition.

CONSIDERATION

14.   It is well recognised that the starting point for statutory interpretation is the consideration of the text itself. In Alean (NT) Alumina  Pty  Ltd  v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 Their Honours Hayne, Reydon, Crennan and Kiefel JJ held:

The Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself. Historical considerations and extrinsic  materials  cannot  be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may  require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking  to  remedy. 3

15.   Both s 51 ands 93F contain an introductory phrase prior to the purpose of the section. "Except as otherwise expressly provided" for the appeal  provision, and "Despite any other Act or law of the Territory (including common law)" for the limitation of decision review.

3 A lean (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47].

21.    Bi scoe J held:

[98]   The purpose of s88 is to empower a roads authority to deal  with a situation which, in its opinion, is dangerous or hazardous. By its nature, a dangerous or hazardous situation may need to be addressed quickly, even urgently. The ongoing hazard or da ng er to the public which results from holding that s88 i s subject to the delay involved in obtaining development consent if required under Part 4 of the EPA Act (including taking account of all the mandatory matters in s 79C) or in satisfying the requirements of ss 11 l and 112 in Part  5, suggests  a cons truction that s88 is not subject to those requirements of Parts 4 and 5.

[99]   As for the text, the words in s88 "despite any other Act or law to the contrary" suggest that s88 exhaustively states the planning condition of power which it confers and is not subject to any other statutory planning requirements or restrictions.

[102] The process of analysis for legislation containing such a phrase was set out in In re Bland Brothers and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 where the Full Court construed a section of an Act commencing "Notwithstanding anything in this Act contained". It was held at 533:

As to the introductory words, the section should first be construed without them, and th n, if there is anything in the other provisions of the Act inconsistent with the interpretation so arrived at, these other provisions must yield. This was in effect dec i ded , as we understand, by all of the justices of England in Sir Thomas Cecil's Case [1597] 7 Rep, where it was said that the Act otherwise was to be no impediment to the interpretation of a section containing the words 'notwithstanding' etc.

[ I 06]    Applying the process of analysis in Bland to s88 of the  Roads Act:

(a)the first step is to construe s88 without the words "despite any other Act or law to the contrary";

(b)the second step is to ask whether s 76A in Part 4 and ss 111 and 112 in Part 5 of the EPA Act contradict the operation of s88 so construed;

(c)the third step is to obey the directive contained in the word "despite" and ignore what would otherwise be a contradiction from the entitlement provided by s88 .

22. When applying the first ste p of the process in construing s 93F without the words "Despite any other Act... ", it is clear that no proceedings for an appeal are to be brought in relation to a decision of the Commissioner under s 10 (8A). It clearly expressly qualifies the earlier section providing for an appeal by a person aggrieved by a decision in s 51.

23.    The appeal under consideration does not involve the question as to whether "any other Act" contraindicates the operation. There is no other Act where competing provisions or limitations or rights need to be considered in these particular circumstances. And with no contraindication from another  Act, there is nothing to be ignored in the third step.

24.    Thus, to read the Act as internally consistent with itself and operating coherently, the appeal provision to the Tribunal in s 51 is restricted by the prohibition of appeal of certain decisions by the Commissioner ins 93F.

REFERRAL TO SECOND READING SPEECH

25. Section 62B of the Interpretation Act 1978 (NT) states:

628     Use of extrinsic material in interpreting Act

(1)   In interpreting a provision of an Act, if material  not forming  part of the Act is capable of assisting in ascertaining the meaning of the provision, the material may be considere d:

(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)to determine the meaning of the provision when:

(i)   the provision is ambiguous or obscure; or

(ii)   the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose

or object underlying the Act leads to a result that 1s manifestly absurd or is unreasonable.

(2)   Without limiting subsection (1), the material that may be  considered in interpreting a provision of an Act includes the following:

(a)all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;

(b)any relevant report of a Royal Co mmiss ion , Law Reform Commiss ion , committee of inquiry or other similar body that was laid before the Legislative Assembly before the time when the provision was enacted;

(c)any relevant report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the  time when the provision was enacted;

(d)any treaty or other international agreement that is referred to in the Act;

(e)any explanatory memorandum relating to the Bill  containing the provision, or any other relevant document, that was laid before, or furnished to the members of the  Legislative Assembly by a Minister or other Member before the time when the provision was enacted;

(f)any explanatory speech or statement given by a Minister or other Member to the Legislative Assembly on introducing the Bill;

(g)any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section;

(h)any relevant material in any official record of debates in the Legislative Assembly.

26.The Interpretation Act permits consideration of the Second Reading Speech to confirm the meaning is the ordinary meaning. The Second Reading Speech states:

A further limitation of access to firearms is that the Commissioner  must refuse to grant a licence, or permit, or to revoke a person's licence, permit, or certificate of registration, if the Commissioner is

of the opinion the person is a risk to public safety or that it would be contrary to the public interest. In forming his opinion, the Commissioner must have regard to any cdminal intelligence report or other criminal in forma tion. Because of the confidential nature of the criminal info rma ti on, the commissioner is not required to give any reasons for his decision which is likewise non-reviewable in any court or tribunal. This is based on public policy and preserving this kind of information in the possession of the Commissioner. To ensure proper accountability in forming the necessary opinion, the commissioner is unable to delegate this power.5

27.    To legislate against the possibility of appeal, and preclude any reasons for decision-making is a serious curtailment of the normal operation of natural justice principles. It departs from the general system of law and excludes a normal fundamental right of the legal system. However, as stated in the Second Reading Speech , there are public  pol icy grounds  for such  legislative  res tric tions , including preserving the kind of information in the possession of  the Commissioner and its confidential nature.

28.    In my view the language of the Act is clear in its intention to so depart.

29.    The Second Reading Speech confirms that Parliament intended to make these kind of decisions by a Commissioner non-reviewable and non-appellable by any Court or Tribu na l, including the Firearms Tribunal.

30. After consideration I am of the view that an appeal against a decision by the Commissioner pursuant to s 10(8A) is precluded by operation of s 93F.

31.    

The appeal is dismissed.

Dated this 25 th day of May 2022.

kJJL#    .

cttrn]rnnGE EL1 0RR1s

CHA     PERSON

5No rthe rn Terr itory , Parliamentary Debates, Legislative Assembly , 28 May 2003 , 4084- 4087 (Paul He nde rson) .