Rowe v Commissioner of Police, NSW Police Force
[2013] NSWADT 179
•09 August 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Rowe v Commissioner of Police, NSW Police Force [2013] NSWADT 179 Hearing dates: On the papers Decision date: 09 August 2013 Jurisdiction: General Division Before: Judge K P O'Connor, President Decision: The application for review is dismissed for want of jurisdiction.
Catchwords: FIREARMS LICENSING - Tribunal barred from reviewing revocations based on apprehended violence order - Order quashed on appeal - Whether Tribunal then has jurisdiction to review the revocation and set it aside - Statutory construction - Held no review jurisdiction - Firearms Act 1996, s 11(5), s 24, s 75(1)(c) Legislation Cited: Administrative Decisions Tribunal Act 1997
Firearms Act 1996Cases Cited: Battenberg v Union Club [2005] NSWSC 242
Rimanic and Anor v Business Licensing Authority [2002] VSCA 64
The Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220
Union Club v Lord Andrew Charles Robert Battenberg [2006] NSWCA 72Category: Interlocutory applications Parties: Heath Rowe (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: S Mainstone, Mainstone Lawyers (Applicant)
C Zoppo, Sparke Helmore Lawyers (Respondent)
File Number(s): 133075
reasons for decision
This decision deals with an important issue relating to the scope of the review jurisdiction of the Tribunal in firearms licensing. The parties made written submissions, filed 8 May 2013 (the Commissioner) and 22 May 2013 (the review applicant). With their agreement, I have dealt with the matter on the papers.
The review applicant formerly held a category A, B firearms licence. The Commissioner issued a notice of revocation of the licence, effective 19 October 2012, following the making of a final apprehended violence order against the review applicant by the Local Court on 17 October 2012 for 12 months.
Section 24(1) of the Firearms Act 1996 (the Firearms Act) is the source of the Commissioner's power. I will set out the whole of s 24, as I refer later to the scheme of the provision as a whole:
24 Revocation of licence
(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)
(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if:
(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or
(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
(2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
The review applicant appealed successfully to the District Court. On 19 February 2013 the order was quashed. He applied to the Commissioner for reinstatement of the licence. On 1 March 2013 the Commissioner advised that he would not reinstate the licence despite the fact that the order had been quashed. The Commissioner affirmed this decision after internal review (14 March 2013). The following day the present application for review was lodged.
The applicant seeks an order from the Tribunal setting aside the revocation. The Commissioner submits that the Tribunal is without jurisdiction because the Commissioner did not make any decision as such in the matter, the revocation arose automatically. Further, the Commissioner submits that the terms of the legislation are clear - once an order is made the Commissioner is required to issue a notice of revocation, and the Commissioner can not reconsider or withdraw the notice if later the order is quashed.
The Administrative Decisions Tribunal Act 1997 (ADT Act), s 8(1) provides:
A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.
Section 38(1) provides:
The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or
(b) in the exercise of any other functions of the administrator identified by the enactment.
Section 75 provides:
75 Review by Administrative Decisions Tribunal of certain decisions
(1) A person may apply to the Administrative Decisions Tribunal for a review of any of the following decisions:
(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,
(b) a condition imposed by the Commissioner on a licence or permit issued to the person,
(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),
(d) the refusal of or failure by the Commissioner to register a firearm,
(e) the cancellation of the registration of a firearm by the Commissioner,
(f) a firearms prohibition order made against the person,
(g) a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph.
(2) Despite subsection (1), a regulation referred to in subsection (1) (g) may limit the class of persons who may make an application for a review of a decision referred to in that paragraph.
(3) A regulation referred to in subsection (1) (g) cannot be made without the concurrence of the Minister administering the Administrative Decisions Tribunal Act 1997.
(4) The following provisions of the Administrative Decisions Tribunal Act 1997 do not apply to an application to the Administrative Decisions Tribunal for a review of a decision referred to in subsection (1) (a) or (c) that was made on the grounds referred to in section 11 (5A) or 29 (3A):
(a) Part 2 of Chapter 5,
(b) section 58.
(5) In determining an application for a review of any such decision, the Administrative Decisions Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11 (5A) or 29 (3A), and
(b) in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for review and the applicant's representative.
The jurisdictions conferred by either s 75(1)(a) or s 75(3)(c) might be said to apply to this case. The failure to re-issue the licence could possibly be cast as 'the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person' (s 75(1)(a)).
Alternatively, s 75(3)(c) could be said to apply.
In this case the parties' submissions focussed on the proper interpretation of s 75(3)(c). They did not canvass s 75(1)(a) as a source of jurisdiction, and I will not consider that question any further.
Consideration
The Commissioner contends that his office did not make any 'decision' in October 2012, and therefore there is no reviewable 'decision' for the purposes of the Firearms Act. The submission is that the Commissioner issued the notice of revocation in circumstances where his office had no discretion in the matter, and was bound by law to do so. The contention is that 'decision' carries the connotation of the making of a judgement that involves the balancing of considerations.
In my view, the inclusion in s 75(1)(c) of an exception for revocations that flow from two types of order (an apprehended violence order or a firearms prohibition order) points to a legislative intent to encompass within the ordinary meaning of 'revocation' the imposition of a revocation based on a factual circumstance not involving the exercise of any discretion.
Further, in contrast to s 75(3)(c), pars (a), (b) and (d) speak of a decision made 'by the Commissioner'. Section 75(3) is drafted differently and it simply speaks of a fact or circumstance, i.e. 'revocation'. (Similarly par (f) speaks of a circumstance - 'a firearms prohibition order'.) In my view this difference in drafting reinforces my conclusion that par (c) is intended to apply to the fact or circumstance of a revocation however it arises. It is not limited to situations where there is an active exercise of a discretion, as, for example, in decisions based on the public interest or character.
The main issue raised is whether the exclusion from jurisdiction of an apprehended violence order continues to apply if the order is subsequently quashed. There are strong arguments either way, and I have found it necessary to explore case-law to which no reference is made in the written submissions. I have, with some doubt, concluded that the Tribunal has no jurisdiction to entertain the review application.
The applicant argues that the effect of the quashing of a conviction or order is that it is rendered void ab initio. In support of that argument the applicant drew my attention to the primary decision of Campbell J in Battenberg v Union Club [2005] NSWSC 242. However, he did not draw my attention to the Court of Appeal decision reversing Campbell J's decision, by majority: Union Club v Lord Andrew Charles Robert Battenberg [2006] NSWCA 72.
In that case a club member became bankrupt. The club's constitution and rules provided that a member ceased to be a member in that circumstance. Later he had the bankruptcy annulled. The club refused to automatically reinstate him. The club's view was that he needed to reapply in the ordinary way. Campbell J concluded that the rule did not apply in the circumstances, adopting the view that the annulment had the effect of avoiding the bankruptcy ab initio, and therefore the rule was rendered inoperative. On this view, the club member had never lost his membership.
The Court of Appeal disagreed (Giles, Santow JJA; Bryson JA dissenting). The majority was influenced by the following considerations: the plain words of the rule; a consideration of the context in which the rule operated; and the importance that the fact of bankruptcy may have for members of the club. The majority also referred to specific features of the administration of bankruptcy laws which include the making of arrangements with creditors that allow for the possibility of an annulment order to be made, even though there may have been a commercial foundation for the original order. As Giles JA noted at [19]: 'His bankruptcy was not annulled because he should never have been made bankrupt, but because he thereafter came to an arrangement with his creditors. The reason for cessation of membership remained notwithstanding the annulment.'
The majority also referred to consequences for an affected member if the view was taken that the original circumstance was to be disregarded. The member would, for example, be exposed to club fees and dues for the period during which the bankruptcy order had been operative. The affected member might have no interest in remaining connected to the club, and would have no choice in that regard. The majority concluded that read in context the rule was meant to operate automatically, and the affected member had to re-apply for admission to the club, and the club had available to it the usual discretion in that regard. I note that the club's submissions included that the consequences of giving effect to the plain words of the club rule were in the circumstances not unduly harsh (see primary judgment at [30]).
My attention was not drawn by the submissions of either party to another case, one that supports the case put by the review applicant, Rimanic and Anor v Business Licensing Authority [2002] VSCA 64 (16 May 2002). This case dealt with the wholesale motor car traders licensing scheme in Victoria. It provided for the automatic loss of a licence in certain circumstances, in this instance the circumstance being conviction for a serious offence of violence. The trader had his conviction quashed on appeal. He sought a declaration that he is to be deemed never to have committed the offence, with the consequence that he was entitled to be restored to his previous position (i.e. to have his licence reinstated).
The Court of Appeal granted the declaration. It applied the common law principles as to the retrospective effect of the quashing of a conviction, as explained by the High Court in The Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220.
The administrator had opposed the application on similar grounds to those advanced by the Commissioner in this case. The administrator submitted that the statutory scheme evinced an intention to visit on the licensee an automatic bar. If the ground for the bar did not subsist due to a successful appeal as in the case of a quashed order or quashed conviction, the former licensee needed to reapply.
Callaway JA (Winneke P, Vincent JA agreeing) said (footnotes omitted):
10. Subject to considering Mr Burke's submissions [for the administrator], to which I shall turn in a moment, the result is that, if the offence of which Mr Rimanic was convicted in the Magistrates' Court was a "serious offence" for the purposes of s.28, the appellants' licences were automatically cancelled 30 days later but, when the conviction was set aside by the County Court, the effect of the conviction was retrospectively undone. In the language approved by Rich, Dixon, Evatt and McTiernan, JJ., the appellants were entitled to be restored to their former position and to stand in every respect as if Mr Rimanic had never been charged with the offence of which he was convicted. To use the language of Starke, J., the conviction was obliterated and was to be altogether held for nothing.
11. Mr Burke endeavoured to avoid that conclusion by reference to the language of s.28 and the way in which it contrasts not only with other legislation but also with a later provision in the same Act. The submission was that Parliament had evinced an intention, in the interest of consumers, automatically to cancel a licence 30 days after a licensee or director is convicted of a serious offence, the fact of such conviction being sufficient and success in a subsequent appeal being irrelevant. The comparable legislation was the Second-Hand Dealers and Pawnbrokers Act 1989 and the Prostitution Control Act 1994, in each of which there are provisions for automatic cancellation but it is further provided that a conviction or finding of guilt takes effect at the conclusion of the proceeding for the offence, whether on appeal or otherwise, or at the end of any appeal period, whichever is the later.
12. The later provision in the Motor Car Traders Act is s.50A(6). Section 50A is concerned with the offence of aiding or abetting an unlicensed trader. Sub-section (6) provides:
"(6) If a licensee is convicted of an offence against this section, her, his or its licence is automatically cancelled - (a) 30 days after the conviction; or (b) if the licensee appeals against the conviction under section 83 or 92 of the Magistrates' Court Act 1989 within 30 days of the conviction - (i) on the day after the appeal is abandoned; or (ii) on the day after the appeal is dismissed or struck out."
It was pointed out that s.50A was inserted in the Act at the same time as the present s.28.
13. Notwithstanding Mr Burke's able submissions, I can find no indication that Parliament intended to abrogate the common law principle in Cavanough's case as it bears on cancellation under s.28. I reject counsel's submission that the ability to apply under ss.29B and 29C for permission to continue to hold a licence despite a conviction affords an adequate alternative remedy to the protection given by the common law. An innocent person, for that is the status of a person whose conviction is set aside, should not have to rely on the favourable exercise of an administrative discretion, even if it is reviewable by the Victorian Civil and Administrative Tribunal. The legislature could have solved the problem of an appeal by the means adopted in s.50A(6)(b) but it did not. It left the common law to operate. The reason may have been a desire that automatic cancellation under s.28 be delayed for no more than 30 days. Be that as it may, there is no public interest, including the interests of consumers, in visiting the very serious consequences of s.28 on a person who is innocent.
14. The common law principle in Cavanough's case is fundamental to a fair system of criminal justice. A wrong has been done to the person whose conviction is quashed or set aside and that person must be restored, so far as may be, to his or her former position. That principle gives effect to a basic human right, so that the observations of Mason, C.J., Brennan, Gaudron and McHugh, JJ. In Coco v. R. are in point:
"In Bropho v. Western Australia, Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ. pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is: `"in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used".' At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights." (Footnotes omitted.)
15. The result is, accordingly, as stated in [10] above. That conclusion makes it unnecessary, and undesirable, to express an opinion on the question whether the offence of which Mr Rimanic was convicted was an "offence involving ... violence" within the meaning of the definition of "serious offence" in s.3.
The Firearms Act has the following objectives (s 3):
3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
The Commissioner is given a general discretion to issue a firearms licence provided the applicant meets certain criteria and no disqualifying circumstances are present: see generally, s 11. In that regard s 11(5) provides:
(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.
Importantly, as I see it, this provision distinguishes at s 11(5)(c) between an extant order and a revoked order. In my view the expression 'revoked order' encompasses an order quashed on appeal.
In my opinion, s 24, read as a whole, and read in conjunction with s 75(1)(c), limits the power of the Tribunal to review any revocation based on an apprehended violence order, even if the order is later quashed.
The Commissioner is given a strictly limited power to withdraw a notice of revocation, but only in the period prior to the original notice taking effect.
This strict approach is, as I see it, consistent with the public safety objectives of the Firearms Act.
Further, the legislature has sought to deal with the circumstance of a revocation of an order at s 11(5) of the Firearms Act. The licensee is no longer barred from reapplying for ten years. The exception at s 11(5) favours a conclusion that the intention is that the former licensee re-enter the licensing system by way of an application; the former licensee is not to be reinstated automatically upon quashing of the order.
The qualification in s 75(1)(c) on the ordinary jurisdiction of the Tribunal to review any revocation decision is another indication that the Parliament was seeking to reinforce the automatic consequences of the making of an initial order.
I accept the Commissioner's submission that the remarks of the Minister made in 1992 when introducing this provision into the Firearms Act of that time could be read to this effect, but in fairness to the applicant's case I note that the remarks fail to have regard to the possibility that an order could be quashed on appeal.
In my view, when consideration is given to the public interest objectives of the Firearms Act, especially the emphasis on community protection and public safety, the terms of s 24 read as a whole and the exclusion seen in s 75(1)(c), the Tribunal can not review a notice to revoke a licence on the basis of an apprehended violence order even though it is later quashed on appeal. As I see it, the former licensee may reapply for a licence. The ten year bar that would have applied had the order been confirmed on appeal no longer applies. If the Commissioner were to refuse the application the applicant has the usual right of review.
In reaching this conclusion, I acknowledge that this is a case where for ordinary purposes the quashing of the order renders the original order void ab initio. It is not a case with the peculiarity seen in Battenberg where the 'annulment' was obtained by a later compromise, and it remained correct that the member had been bankrupt at the time the automatic cessation of membership clause had taken effect.
I also note that the court in Rimanic was not called on to deal with the specific issue that has arisen here, whether the statutory bar on the Tribunal's review jurisdiction remains operative after an apprehended violence order is quashed. The factors that led the Victorian Court of Appeal to conclude that the statutory scheme did not displace the common law principles included the more relaxed objects of the motor traders licensing law as compared to the firearms law under notice here. Those objects included an express reference to treating motor traders 'equitably'. Further, the scheme made no reference to the effect of the quashing of a conviction.
The objection to jurisdiction is upheld. The application for review is dismissed for want of jurisdiction.
Decision last updated: 09 August 2013
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