Solomon v Commissioner of Police (NSW)

[2021] NSWSC 236

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Solomon v Commissioner of Police (NSW) [2021] NSWSC 236

Hearing dates:

11 March 2021

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Common Law

Before:

Basten J

Decision:

(1)   Grant the plaintiff an extension of time within which to file his summons for judicial review up to and including 7 October 2020.

(2)   Dismiss the summons.

(3)   Order that the plaintiff pay the defendant’s costs of the proceedings.

Catchwords:

ADMINISTRATIVE LAW – procedure – time limits – extension of time – delay caused by obtaining legal advice and obtaining funds

ADMINISTRATIVE LAW – judicial review – firearms prohibition order – whether person is a fit and proper person in the public interest to possess a firearm – procedural fairness – plaintiff not informed of or given opportunity to respond to factual matters

ADMINISTRATIVE LAW – judicial review – denial of procedural fairness – non-disclosure of material to be relied on by decision-maker – whether information known to applicant – whether use of information reasonably expected – materiality of non-disclosure

ADMINISTRATIVE LAW – judicial review – firearms prohibition order – irrelevant considerations – internal reviewer reliance upon uncharged drug offences – failure to address relevant considerations – matters raised by applicant

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 49, 53, 55, 58

Firearms Act 1996 (NSW), ss 3, 8, 11, 42, 73, 74, 74A

Law Enforcement (Powers and Responsibilities) Act, s 21

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24

CNY17 v Minister for Immigration and Broder Protection (2019) 94 ALJR 140; [2019] HCA 50

Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22

Category:

Principal judgment

Parties:

David Solomon (Plaintiff)
Commissioner of Police (Defendant)

Representation:

Counsel:
C Parkin (Plaintiff)
J Davidson (Defendant)

Solicitors:
Christopher Kogias (Plaintiff)
Crown Solicitor (NSW) (Defendant)

File Number(s):

2020/288825

Judgment

1. BASTEN J: The plaintiff, David Solomon, lives on a rural property in north-eastern New South Wales. Until April 2014 he held a licence under the Firearms Act 1996 (NSW) (“Firearms Act”) (and earlier legislation). On 9 April 2014 his licence was revoked. On 22 January 2019 a delegate of the Police Commissioner made a “firearms prohibition order” under s 73 of the Firearms Act (“initial order”). On 27 January 2019 the order took effect when it was served on the plaintiff.

2. The decision to make the order was an “administratively reviewable decision” for the purposes of s 53 of the Administrative Decisions Review Act 1997 (NSW). The plaintiff sought an internal review. On 4 November 2019 a senior adjudicator carrying out the internal review affirmed the decision to make the initial order (“review decision”). By summons filed on 7 October 2020, the plaintiff sought an order in the supervisory jurisdiction of this Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW), quashing the review decision.

Extension of time

3. As the summons recognised by the first order sought, the plaintiff required an extension of time within which to bring the application. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1), such applications must be brought within three months of the decision. In the present case, it was assumed that the relevant date was that of the review decision, namely 4 November 2019. Accordingly the time limitation expired on 4 February 2020. The summons, not filed until 7 October 2020, was some eight months out of time.

4. The plaintiff’s affidavit of 9 September 2020 revealed that he and his solicitor acted promptly in seeking advice from counsel as to further available challenges, namely within two weeks of receiving the review decision. For reasons which are not explained, no advice was forthcoming. However, the solicitor’s letter demonstrated that the plaintiff needed to obtain advice from competent counsel before bringing these proceedings. On 11 March 2020 counsel now acting for the plaintiff was briefed to advise and provided advice on the merits some four weeks later. The further delay of six months was attributed to the need to obtain funds to instruct counsel during a period when the plaintiff’s business was adversely affected by the pandemic. It appears that his business was one of concreting and excavating.

5. The Commissioner submitted that the delay was significant and the explanation was both inadequate and, to the extent that there was an explanation, it was limited to assertions unsupported by documentation.

6. The plaintiff submitted that not only was the explanation sufficient, but that the plaintiff is subject for an indefinite period to a final order permitting significant intrusions on his privacy pursuant to powers which would not otherwise be available to the police: he will therefore suffer serious prejudice if his challenge is soundly based. Further, the prejudice which he suffers is not balanced by any countervailing prejudice to the interests of the Commissioner if this proceeding goes ahead.

7. While the affidavit provided a less than complete explanation for the delay, so far as it goes, it is plausible. It is true, as counsel for the Commissioner noted, that the Court has declined to extend time where the delay has been shorter than that in the present case. Nevertheless, there are three considerations which favour an extension of time. First, the plaintiff’s submission as to the balance prejudice is correct: indeed, the Commissioner does not allege prejudice. Secondly, the review decision was not based on oral testimony, nor is it suggested that it should have been. Rather it was a review based on documentary material available to the Commissioner at the time it was carried out.

8. Thirdly, although the review decision superseded the initial order, should the review be set aside, the review decision will no longer operate. As the summons asserted, if the review decision were to be set aside, the proper consequential order would be a remittal of the unresolved application for internal review to the Commissioner for further consideration. Thus, to the extent that there is a public interest involved, the plaintiff will remain subject to the initial order until the proposed further internal review is conducted. The status quo will remain.

9. In my view, these three considerations are sufficient to justify an extension of time. Had there been potential prejudice to the public interest, the balance might have been tipped the other way.

10. Accordingly, the Court will extend time for the filing of the summons seeking judicial review up to and including 7 October 2020.

The review decision

11. The history set out below reflects the findings of the adjudicator in carrying out the internal review.

12. The plaintiff held a licence for some four years under the predecessor to the current Act, namely the Firearms Act 1989 (NSW). On 19 January 2001 he was issued with a category AB firearms licence (under the current Act), which was extended on 21 September 2010 to include category C. [1] The adjudicator noted that the licence had been allowed to lapse and a seizure notice issued. He referred to “firearms seized from you in 2013”; there appears to have been no other seizure notice issued prior to 2013, but counsel for the Commissioner suggested the seizure may have occurred at the time of the events leading to convictions in 2014.

    1. Categories of licences are now identified in s 8 of the Firearms Act and relate to different kinds of firearms.

13. On 17 February 2010, while his licence was extant, the plaintiff was convicted of having goods suspected to have been stolen and was fined. It may be assumed that that conviction was treated as immaterial, because it preceded the extension of the licence in September 2010 to category C, and the issue on 10 August 2011 of a new category ABC firearms licence which was to expire some five years later, on 23 September 2016.

14. On 25 March 2014 he was convicted of (i) possession of an unauthorised prohibited firearm, (ii) possession of an unregistered firearm (not being prohibited); (iii) failing to comply with the storage requirements of his licence and (iv) cultivating a prohibited plant. He was fined on each of the four counts and was also given a two year good behaviour bond in respect of the last.

15. Some two weeks after the convictions were recorded, namely on 9 April 2014, his firearms licence was revoked. It is not entirely clear, but it is likely that the nine registered firearms held under that licence were seized, possibly for non-compliance with storage requirements, pursuant to s 42 of the Firearms Act.

16. On 16 March 2015 the plaintiff’s wife was issued with a category ABC licence, with seven of the nine firearms previously registered to the plaintiff being registered in her name.

17. On 5 August 2015 the police, having identified one of the firearms seized from the plaintiff in 2013 as a prohibited firearm, informed him “that the firearm would not be released to [his] wife without a prohibited weapon permit”. (There is no reference to such a permit being granted.)

18. Some two and a half years later, on 12 April 2018, the police attended the plaintiff’s home to speak with him about “feral animals” and located five bags of cannabis in a shed. A search warrant was later executed. At that stage the firearms registered to the plaintiff’s wife were held in a safe. She told police executing the search that she did not know where the keys to the safe were, but that the plaintiff did. Following a telephone call to the plaintiff, she retrieved the safe keys. The police identified safe storage breaches, suspended her firearms licence and seized the firearms and ammunition in the safe.

19. On 20 April 2018 officers returned to the premises to serve documents on the plaintiff’s wife and found more ammunition in the safe. The plaintiff’s wife was later found guilty of two firearm offences and her firearms licence was revoked.

20. As has been noted, a firearms prohibition order was served on the plaintiff on 27 January 2019. Section 74A of the Firearms Act permits a police officer to enter premises under the control or management of a person the subject of such an order to the extent “reasonably required for the purposes of determining whether [the person] has committed an offence under section 74”: s 74A(1). On 30 May 2019, four months after the issue of the order, the police conducted a search of the plaintiff’s property the results of which were summarised by the senior adjudicator as follows:

“Police found 10 seeds which may have been cannabis seeds and three loose rounds of ammunition in various locations. No charges were laid against you as police formed the opinion that the provisions of section 74(7)(a) applied as they determined that you could not reasonably be expected to have known the ammunition was on the premises”.

21. Finally, the senior adjudicator noted that the plaintiff had “a history of being involved in disputes with [his] neighbours”. A footnote to that finding referred to COPS events reports dated 13 October 2015 and 29 July 2014. No details were revealed.

22. Having set out those matters as “material findings of fact”, the senior adjudicator identified the applicable law as that found in s 73(1) of the Firearms Act which provides:

73   Firearms prohibition orders

(1)   The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

23. The adjudicator concluded his statement of reasons with a section headed “Reasoning process”. The reasoning process contained some general statements of the underlying purpose and policy of the legislation and referred to the statutory test, namely whether “the person is not fit, in the public interest” to have possession of a firearm. He noted, correctly, that the test differs from that of whether the person is a “fit and proper person” which applies to the issue of a firearms licence: s 11(3).

24. Subject to two exceptions, the reasoning did not expressly identify which of the facts found were seen as significant in relation to the determination that the decision made by the Commissioner was the “correct and preferable decision.”

25. The first exception concerned an assessment of the financial harm which might be caused to the plaintiff if the order were allowed to stand. The adjudicator acknowledged some element of harm and potential disadvantage, accepted that “loss of income is not an irrelevant factor in the exercise of discretion”, but said that it must be weighed against “the primary factor of the overriding need for public safety”. No challenge is made to that aspect of the reasoning.

26. Secondly, and more importantly, he addressed a submission that many of the restrictions imposed under the prohibition order operated in any event because of his earlier convictions. That in turn led him to consider the significance of the location of cannabis on the property. This aspect of the reasoning was challenged in this proceeding and it is convenient to set out in full the adjudicator’s reasoning in this regard.

“Careful consideration was afforded to your legal representative’s submissions that many of the restrictions imposed on a person subject of a FPO [firearms prohibition order] already apply to you as your convictions for prescribed offences prohibit the issuance of a firearms licence or permit to you for 10 years from the date of your conviction, being 24 March 2014. However, despite those convictions which included the cultivation of a prohibited drug, cannabis was again found on your property.

I accept that no person was charged with an offence regarding those drugs as ownership could not be proved to the criminal standard. However, even if you were not the owner of the drugs, I find it implausible that you would have been oblivious to the drugs being on your property as police could smell the cannabis from the rear of your pig sty. Further, police believe that during the course of your wife’s authorisation for firearms you may have had access to the firearms that were previously owned by you. Consequently, on the balance of probabilities, despite your firearms and drug convictions and the penalties imposed, it appears that your criminality may have continued. In this regard, it should be noted that although a criminal proceeding requires proof beyond a reasonable doubt to record a conviction, there is no onus of proof attached to this administrative function.”

Grounds on which review sought

(a)   pleaded grounds

27. Omitting the particulars, which will be addressed shortly, the grounds of review were as follows:

1. denial of procedural fairness by failing to inform the plaintiff of, and give him the opportunity to be heard with respect to, certain factual matters taken into account;

2. taking into account irrelevant considerations;

3. failing to take into account relevant considerations, and

4. acting for an improper purpose.

28. Before referring to the relevant legal principles it is convenient to note an issue which was not raised in these proceedings. The heading to the application for an internal review read, “Appeal against Firearms Prohibition Order made under s 73(1) Firearms Act, against Mr David Solomon.” The letter, dated 14 February 2019, set out the reasons why the plaintiff considered the order should not have been made. The letter concluded with the following paragraph:

“Mr Solomon also wishes to seek an Internal Review of the decision to issue him with a weapons prohibition order under s 33 of the Weapons Prohibition Act 1998. His grounds for seeking this Internal Review are as detailed above. The factors and circumstances that apply here are the same as those contained in his request for the Review under the Firearms Act 1996.”

29. The document entitled “Internal Review – Statement of Reasons” referred only to the firearms prohibition order: there was no reference to a weapons prohibition order, although there was reference to the fact that one of the firearms seized in 2013 was a prohibited firearm. The summons in this Court made no reference to a weapons prohibition order, nor is such a document in evidence. It probably has no practical significance whilst the general firearms prohibition order stands. No further reference need be made to it in this judgment.

(b)   legal powers of Court

30. Although both parties were represented by experienced counsel, it is important that the plaintiff and those otherwise assisting him have a clear understanding of the limits of the review being undertaken by the Court. The Court is asked to exercise its supervisory jurisdiction with respect to an administrative decision. Its primary function is to ensure that those making decisions in the exercise of public functions comply with the legal limits of their powers. However broad the language conferring a statutory power may seem to be, there will always be limits to its scope. A power should not be exercised for a purpose extraneous to the statutory scheme under which the power is conferred. Similarly, the procedure by which a decision is made must be fair, although the law has developed principles against which the fairness of the decision-making process is to be judged.

31. Importantly, this Court cannot review factual findings made by the adjudicator. For example, whether there was (or was not) cannabis found by police on the plaintiff’s land when they attended in April 2018 cannot be determined by this Court. Nor can this Court decide whether, in the factual circumstances identified by the adjudicator, it would make a firearms prohibition order. The power to make such an order is vested in the adjudicator and not this Court.

(c)   scope of judicial review

32. The first step in addressing the grounds raised by the plaintiff is to identify the legal obligations which condition the exercise of the statutory power. In this regard, the plaintiff drew attention to the reasoning of Kiefel CJ and Gageler J in CNY17 v Minister for Immigration and Border Protection: [2]

“The operative common law principle of statutory interpretation is that observance of procedural fairness is an implied condition of the exercise of jurisdiction by ‘every one who decides anything’ [3] pursuant to statute to affect the interests of an individual by force of the statute, unless and to the extent that procedural fairness is clearly excluded by the statutory scheme. [4] ”

2. (2019) 94 ALJR 140; [2019] HCA 50 at [16].

3. Board of Education v Rice [1911] AC 179 at 182, quoted in Kioa v West (1985) 159 CLR 550 at 584; [1985] HCA 81.

4. Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [66], [97]-[100].

33. As counsel for the plaintiff submitted, in order to identify the obligations of the adjudicator, as delegate of the Commissioner, one starts with the relevant legislative provisions. These include both the substantive power located in the Firearms Act, and the procedural powers in the Administrative Decisions Review Act. The adjudicator correctly identified the operative power as that found in s 73(1) of the Firearms Act, set out above. There are three aspects of this provision which invite attention.

33. First, the criterion for engagement of the power is an “opinion of the Commissioner”. In this case it is, relevantly, an opinion formed by the adjudicator. Further, the opinion to be formed requires an assessment of the person against whom an order may be made, by reference to the public interest. The factors which may be taken into account are not expressly identified nor confined, but will be governed by the principles and objects of the Act, which indicate the purposes for which the power may be exercised. Those principles are set out in s 3(1) of the Act in the following terms:

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.

35. Accepting that the Commissioner must exercise his or her powers under s 73(1) for the purposes so defined in s 3(1), it remains clear that there will be matters of evaluative judgment of a kind which is difficult to analyse, namely whether an individual may in the future act irresponsibly if allowed access to a firearm.

36. Such a provision attracts the analysis undertaken by Gibbs J in Buck v Bavone: [5]

“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”

5. (1976) 135 CLR 110 at 118-119; [1976] HCA 24.

37. It will be necessary to turn below to the concept of prohibited considerations and mandatory considerations. Quite properly, there was no ground of manifest unreasonableness raised in the present case: there is no doubt that the decision to make a firearms prohibition order was open in the circumstances of the case.

38. The second aspect of the statutory scheme which must be noted concerns procedural obligations. No submission was made in this Court that the Commissioner was required to accord some form of procedural fairness to the plaintiff before making a firearms prohibition order under s 73. Rather, the case for the plaintiff treated the initial order as some kind of preliminary step which provided notice of the factors which the Commissioner took into account in making the order and which could then be addressed in seeking internal review. Put somewhat differently, the reasons given for making the initial order raised an expectation on the part of the plaintiff that no other matters would be taken into account in an internal review, without notice to him.

39. Neither of these characterisations of the initial order can be accepted. It was an operative order taking effect, and, as the plaintiff submitted, seriously reducing his liberty from warrantless searches, and limiting his privacy. Further, the brief reasons given for the initial order included findings that he had been “convicted of the following, and other criminal offences”. Three offences were then identified, being the three firearms convictions in the Taree Local Court on 25 March 2014. There was no identification of the “other criminal offences”. The reasons also made reference to his “antecedents”, which no doubt included the convictions, but may not have been so limited. Thus, even if there was an obligation to notify the plaintiff of matters not relied on in making the initial order, it was clear that not all matters relied on had been listed in the reasons.

40. Thirdly, there is no statutory basis for considering the reasons given for the initial order as limiting the scope and function of the adjudicator on an internal review. The right to internal review arose under s 53 of the Administrative Decisions Review Act. The function of the reviewer was identified in s 53(5A) in the following terms:

53   Internal reviews

…

(5A)   Reviewer has functions of administrator In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant legislation or other law that the administrator had in making the decision being reviewed.

41. There are two other features of the Administrative Decisions Review Act which bear upon the possibility for, and scope of, procedural steps in carrying out an internal review. The purpose of an internal review, as revealed by the structure of the Act, is both to provide an opportunity for self-correction by the authority making the decision and, secondly, to impose such an opportunity as a pre-condition to the exercise of merit review by the Civil and Administrative Tribunal. The second purpose appears from s 55 of the Administrative Decisions Review Act, which relevantly provides:

55   Making of applications

(1)   An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person.

(2)   Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules.

…

(3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53(9).

(4)   However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a)   the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

(b)   it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

…

(6)   The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests.

42. A key aspect of this provision is that internal review has been sought and the review “is taken to have been finalised under s 53(9)”: s 55(3). To understand the operation of that latter provision it is necessary to set out further parts of s 53, as follows:

53   Internal reviews

…

(5)   Review of the application Following the internal review of the decision, the internal reviewer may:

(a)   affirm the decision, or

(b)   vary the decision, or

(c)   set aside the decision and make a decision in substitution for the decision that is set aside.

…

(5B)   Reviewer to notify administrator of decision An internal reviewer must notify the administrator of the result of, and the reasons for, his or her decision under subsection (5) as soon as is practicable after making the decision.

(6)   Notice of result of review and appeal rights Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of:

(a)   the outcome of the internal review, and

(b)   the reasons for the decision in the internal review, and

(c)   the right of the person to have the decision reviewed by the Tribunal.

…

(9)   When an internal review is finalised An internal review is taken to be finalised if:

(a)   the applicant is notified of the outcome of the review under subsection (6), or

(b)   the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

Note—

Section 55 provides that an interested person may apply for an administrative review under this Act of an administratively reviewable decision once an internal review of the decision is taken to be finalised under this subsection.

(10)   No internal reviews of decisions previously reviewed under this section A person is not entitled to a review under this section of any decision previously reviewed under this section or a decision made under subsection (5).

43. In the present case, the plaintiff’s application was dated 14 February 2019; the review decision was dated 4 November 2019. There is no doubt that, in the absence of further information, the 21-day period specified in s 53(6) and (9) was not complied with. Whether the plaintiff agreed to a longer period, pursuant to s 53(9)(b), is not disclosed on the evidence. The plaintiff did not contend that the adjudicator’s decision in November 2019 was not an effective affirmation of the initial order. Nor was there any reference to what decision was deemed to have been made if the internal review were not completed within 21 days of the making of the application.

44. For present purposes, the 21-day period reveals a legislative expectation that a review should be completed within such a period. The existence of such a constrained timetable is inconsistent with an intention to permit the adjudicator to collect relevant material, consider which if any of the documents obtained internally should be relied upon in undertaking the internal review, provide that material to the affected party, give that party an opportunity to respond and then prepare a decision based upon the material and the party’s response.

45. There are further implications to be drawn from the statutory scheme which support that conclusion. First, as already noted, there is no apparent obligation to provide procedural fairness before the initial order is made. There is, however, an entitlement to receive reasons. Where reasons are not given for the initial order, reasons may be sought and must be provided “as soon as practicable (and in any event within 28 days) after receiving such a request”. [6]

    6. Administrative Decisions Review Act, s 49(2).

46. Secondly, pursuant to s 53(2)(d), the application for internal review is to be lodged within 28 days of receiving notification of the initial order, or reasons if reasons are sought. This period is not consistent with any opportunity for seeking, receiving and responding to additional material.

47. Thirdly, to the extent that the internal review process is understood as a necessary preliminary to an application to the Tribunal, it is clear that procedural fairness will be provided before a Tribunal determination is made. Thus, relevantly with respect to information of the kind identified in the present case, s 58 provides:

58   Duty of administrator to lodge material documents with Tribunal where decision reviewed

(1)   An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:

(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49(3)), and

(a1)   a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and

(b)   a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

48. The possibility of a hearing before the Tribunal, following full disclosure of the underlying documentation, will give little solace to the plaintiff. He falls within a category of disqualified applicants who have no right of merit review before the Tribunal. Nevertheless, the statutory scheme for internal review does not operate differentially between persons who may, and persons who are disqualified from, seeking an independent review by NCAT if an internal review is unsuccessful. There is no basis in the statute to allow disqualified persons greater rights at the internal review stage.

49. The clear statement rule of statutory interpretation, recognised in the passage set out above from CNY17, must undoubtedly be considered. However, it operates with lesser force in some areas of statutory regulation than in others. The Firearms Act is one such statute. As explained in s 3(1)(a) of the Firearms Act (set out above) an underlying principle of the Act is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety”. The possible interest of an individual in possessing a firearm is subservient to the rights of other members of the community to be free from the risks to life and limb which attend the irresponsible use of firearms. Further, tight time frames are recognised as an indication of procedural constraints, as may be seen in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd,[7] dealing with speedy adjudication requirements. The fact that, generally, the outcome is not finally determinative of rights is also significant.

    7. (2018) 264 CLR 1; [2018] HCA 4.

50. The statutory scheme outlined above demonstrates with sufficient clarity that there is no reasonable opportunity for an adjudicator to identify all relevant material which may be adverse to the plaintiff’s interests, communicate that information to the plaintiff and then permit the plaintiff an opportunity to respond to it, before making a decision within the prescribed time frame. Thus the statutory scheme does not permit an obligation of procedural fairness of the kind assumed by the plaintiff.

51. However, it must be acknowledged that the case for the respondent Commissioner was not presented in these terms. It is therefore necessary to address the Commissioner’s resistance to the application in its own terms.

Ground 1: denial of procedural fairness

(a)   basis of challenge

52. The principle relied on by the plaintiff was that identified by the High Court in Minister for Immigration and Border Protection v SZSSJ [8] in the following terms:

“83   Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.”

8. (2016) 259 CLR 180; [2016] HCA 29.

53. The factual matters of which the plaintiff complained that he had had no notice were, in substance, threefold, namely:

1. the discovery of cannabis in his shed, as to which no charges were laid;

2. a finding that the plaintiff had ongoing access to firearms after his licence was cancelled and there was no person on the property with a firearms licence, and

3. the reports of altercations with his neighbours.

(b)   relevant legal principles

54. There are two aspects to the complaints of denial of procedural fairness which should be kept separate, namely (i) failure to inform a person of factual matters which may be taken into account adversely to his or her interests, and (ii) failure to inform a person of how factual matters may be taken into account adversely to his or her interests, if that is not obvious.

55. With respect to the first issue, it is rarely necessary as a matter of fairness to tell an affected party what he or she already knows, although it may be necessary to reveal that the decision-maker has that information and intends to rely on it. The qualification acknowledges the second aspect, namely informing the person as to how the material may be taken into account. Again, there is no unfairness in failing to advise how material will be taken into account if it is reasonably obvious that it may operate adversely to the person’s interests.

56. The scope of the disclosure obligation was addressed by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah. [9] After the applicant made his claim for refugee status there was a change of government in his country of nationality, which the decision-maker thought removed any threat of persecution, but the applicant did not address because he thought it irrelevant. McHugh J observed:

“Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.”

9. (2001) 206 CLR 57; [2001] HCA 22 at [141].

57. There are aspects of the language used by McHugh J which, whilst sufficient for the purposes of the particular example given, may not be necessary. For example, the reference to material which “is or could be decisive against the applicant’s claim” may not exhaust the categories of case which require disclosure. Further, there has been a change in the terminology in which the threshold condition of engagement is expressed, with a majority of the Court now favouring a test of “materiality”. In Hossain v Minister for Immigration and Border Protection,[10] Kiefel CJ, Gageler and Keane JJ stated:

“[30]   Whilst a statute on its proper construction might set a higher or lower threshold of materiality, [11] the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of ‘the possibility of a successful outcome’, [12] or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made. [13] ”

10. (2018) 264 CLR 123; [2018] HCA 34.

11. Cf SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.

12. Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 341 [56], quoting Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; eg, Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at 637-638 [78].

13. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; cf Martincevic v The Commonwealth (2007) 164 FCR 45 at 64-65 [67]-[68].

58. In Minister for Immigration and Border Protection v SZMTA [14] the majority (Bell, Gageler and Keane JJ) stated that “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision.” [15]

    14. (2019) 264 CLR 421; [2019] HCA 3.

    15. Ibid at [45]; see also at [48].

59. There is a separate issue to be considered in relation to the use by the adjudicator of the finding of bags of cannabis on the plaintiff’s property. The adjudicator expressly stated that he was aware that no charges had been laid and provided a reason why that step may not have been taken. He nevertheless considered that the presence of the bags could be taken into account and a factual implication derived from the circumstances, to the effect that the plaintiff knew of the existence of the drugs.

60. That reasoning was consistent with the approach adopted in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd. [16] The issue was whether the Authority, having power to take enforcement action against a broadcaster which had breached a licence condition, could act on its own finding of conduct which constituted a criminal offence. (The offence in question was secretly recording a conversation in breach of the Surveillance Devices Act 2007 (NSW).) Referring to a claim that the Authority had purported to exercise judicial power which it did not have, the High Court held that “it is not offensive to principle that an administrative body is empowered to determine whether a person had engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.” [17]

    16. (2015) 255 CLR 352; [2015] HCA 7.

    17. Today FM at [33].

(c)   application of principles

61. The plaintiff accepted that he was on notice of the evidence and issues referred to in the statement of reasons for the initial decision and, to that extent, there was no denial of procedural fairness. Although there were three identified firearms offences referred to in that statement, it was expressly noted that he had also been convicted of other criminal offences. Those offences included possession of goods suspected of being stolen and cultivating a prohibited plant. There can, therefore, have been no denial of procedural fairness in the adjudicator relying upon information that bags of cannabis had been found in a shed on the plaintiff’s property. The adjudicator was entitled to infer that the plaintiff knew about the discovery, and that he would have understood such an event might be taken into account in reviewing the initial order. In his application for internal review, the plaintiff asserted a lack of involvement in “any criminal activities involving guns” and stated he had “no criminal history of committing any violence offences or any serious offences.” The adjudicator found that “despite your firearms and drug convictions and the penalties imposed, it appears that your criminality may have continued.” There was no breach of procedural fairness in failing to alert the plaintiff to the possibility of such a finding.

62. The second particular identified a suggestion that “the plaintiff in fact had ongoing access to firearms after the cancellation of his firearms licence”. This related to the fact that, following the revocation of his licence, his wife obtained a firearms licence. Seven firearms previously registered in his name were then registered in her name. The adjudicator was entitled to infer that he was fully aware of those facts. The next event was the execution of a search warrant at his property, the adjudicator noting:

“[Your wife] stated that she did not know where the firearm safe keys were but that you did. After receiving a call from you she retrieved the safe keys.”

Again, the adjudicator was entitled to infer that the plaintiff had been aware of the police visit to the property and the fact and purpose of the telephone call to him. The inference that he had maintained control of the firearms, despite having lost his licence, was reasonably available and he should reasonably have expected that such conduct would be highly relevant to the decision to make a firearms prohibition order. There is no substance in the complaint of a denial of procedural fairness with respect to this matter.

63. The third particular concerned two events involving disputation with his neighbours. Little was said about these events in the adjudicator’s findings. The police records indicated that the disputes has been sufficiently serious to lead to police involvement. However, the adjudicator merely recorded, “[t]hat you have a history of being involved in disputes with your neighbours”. The finding suggests that the matter was noted, but, there being no further reference to it in the reasons, there is no basis to infer that it played a significant role in the decision to affirm the initial order. By contrast, the continuing access to firearms, and the firearms and drug convictions, were expressly relied upon and, together with the presence of cannabis on the property, appear to have been determinative in the reasoning of the adjudicator.

64. It may properly be inferred that the applicant knew about the involvement of police in his disputes with his neighbours, a factor which was capable of having some limited adverse effect on the decision, but none was identified. There was no denial of procedural fairness in failing to draw the plaintiff’s attention to this matter.

65. The complaint of denial of procedural fairness must be rejected having regard to the circumstances set out above. Further, had the question of statutory construction been properly addressed by reference to the relevant legislation, I would have held that the obligations identified in SZJSS did not arise in the present case.

Ground 2: taking into account irrelevant considerations

66. The plaintiff alleged that there were two irrelevant considerations taken into account by the adjudicator, namely:

“a.   an uncharged and unproven allegation of cannabis possession;

b.   the suggestion that he had ongoing access to firearms after the cancellation of his firearms licence in circumstances where no person residing on his property was lawfully able to possess firearms at the time of the Decision.”

67. Where a broad discretionary power is conferred, to be exercised “in the public interest”, the matters which may be considered often cannot be precisely defined. It is rare to find an express statement of prohibited considerations: there was none here. However, matters which have no rational connection with the exercise of the power for a legitimate purpose are excluded and therefore it is legal error to take them into account. They are characterised as “irrelevant considerations”.

68. What was in fact taken into account was not “cannabis possession” but the presence of bags of cannabis on the property. The adjudicator stated:

“I accept that no person was charged with an offence regarding those drugs as ownership could not be proved to the criminal standard. However, even if you were not the owner of the drugs, I find it implausible that you would have been oblivious to the drugs being on your property as police could smell the cannabis from the rear of your pig sty.”

69. The adjudicator clearly accepted a relationship between the presence of unlawful drugs and the use of firearms in a manner which might put public safety at risk. The Commissioner (and his or her delegates) could reasonably operate on such an assumption. The fact that no charge had been laid and that no proof of a kind sufficient to warrant a conviction for an offence had been provided did not preclude the information being taken into account. The adjudicator found as a fact that the plaintiff was aware of its presence. Nothing in the statute precluded that being taken into account.

70. The second particular differed from the particular as to ongoing access to firearms relied on with respect to the alleged denial of procedural fairness. The particular did not assert that the adjudicator merely had regard to the inference that the plaintiff had ongoing access to firearms after his licence had been cancelled, but added the circumstance that “no person residing on the property” (referring presumably to the plaintiff and his wife), was “lawfully able to possess firearms”.

71. The objection is confused: it is impossible to contend that ongoing access to firearms without lawful authority could be a prohibited consideration. It is possible that the ground was intended as a “no evidence” ground, namely that there was no support for any suggestion that he had such access.

72. The passage in the adjudicator’s reasons relied upon by the plaintiff in his written submissions in support of this ground read as follows:

“…police believe that during the course of your wife’s authorisation for firearms you may have had access to the firearms that were previously owned by you.”

As discussed above, there was certainly material which supported that belief. The adjudicator’s reasoning continued:

“Consequently, on the balance of probabilities, despite your firearms and drug convictions and the penalties imposed, it appears that your criminality may have continued.”

73. With respect to the latter passage, the plaintiff’s submission was that because firearms could no longer be lawfully kept on the property, the possibility that he had had access to unlawful firearms in the past was a prohibited consideration. However, the reasoning of the adjudicator was that neither conviction nor refusal of lawful access had prevented him having access in the past; a further step was therefore appropriate to prevent unlawful access. There is no substance in the claim that such reasoning was prohibited by the statute.

Ground 3: failing to take into account relevant considerations

74. To identify what considerations were “relevant” it is necessary to find in the statute, whether by express statement or implication, identification of a matter which must be taken into account. It must then be demonstrated that these matters were disregarded. Disregard, it should be noted, is to be distinguished from having regard but giving little or no significant weight to the matter.

75. Where a power is conferred in broad discretionary terms, it is likely that a wide range of considerations will be permissible, but not that many will be mandatory. In the present scheme, s 53(4) expressly provides that the internal reviewer “is to consider any relevant material submitted by the applicant.” A number of matters were relied upon by the plaintiff in his application for internal review. The three matters said not to have been considered were as follows:

“a.   the Plaintiff has no criminal history of committing a violent offence or any serious offence;

b.   the Plaintiff has never posed a threat or danger to anyone by reason of his possession or use of firearms; and

c.   there was not, and had not been since 2018, any person living on the plaintiff’s property who could lawfully possess firearms.”

76. It may be accepted that, to the extent that the plaintiff relied upon such matters in his application, the adjudicator was required to take them into account. However, each of the matters relied upon was part fact and part advocacy: they were none the worse for that, but it was not necessary for the adjudicator to address them word by word.

77. As to the first matter, there is no suggestion that the adjudicator thought the plaintiff did have a criminal history of committing violent offences; whether the Firearms Act offences were “serious” or not was a matter for him to assess. He took into account the penalties imposed, indicating that he had regard to a factor affecting their seriousness.

78. The second matter was tendentious. The adjudicator did not identify any material indicating that the plaintiff had posed a threat or danger to any particular person at any particular time, but it was a matter for the adjudicator as to whether the possession of nine firearms, not all of which were properly secured and one of which was a prohibited weapon, could be said to have constituted a threat or danger.

79. As to the third matter, there is no doubt that the adjudicator was aware that since the plaintiff’s wife lost her licence, there was no person living on the property who could lawfully possess firearms. For reasons already indicated, that was not the adjudicator’s concern: his concern was to prevent possible unlawful use by a person who appeared to have shown disregard for the criminal law in the past, even following conviction.

80. There is no substance in ground 3.

Ground 4: acting for an improper purpose

81. The final ground of review suggested that the adjudicator had made the decision “for the improper purpose of enabling NSW Police to investigate the Plaintiff’s perceived ongoing criminality in relation to matters unrelated to any suggested offending involving firearms.” The context for that statement was that the search powers resulting from a firearms prohibition order (noted below) are directed to particular firearms offences.

82. It was not suggested, nor could it have been suggested, that there was any express statement in the adjudicator’s reasons which demonstrated that, objectively, the purpose for which the order was made was outside the scope of the statute. Nor was there any evidence beyond the statement of reasons given by the adjudicator from which an improper purpose could be inferred. In substance, all that could be said for this ground was an inference drawn from two propositions, each of which the adjudicator considered, but rejected. The first concerned a submission that the effect of such an order was draconian. To that, the adjudicator stated, “It is acknowledged that there are serious impositions placed upon any person subject to such an order.” After referring to changes to the legislation made in 2013 expanding the effects of such orders, the adjudicator continued:

“It is acknowledged that police powers (pursuant to s 74A of the Act) were also expanded in this respect and the additional powers can be exercised without a warrant but importantly, they must only be exercised exclusively for the purposes of conducting searches for firearms, firearm parts and ammunition. Moreover, the search powers may not be used arbitrarily or unreasonably.”

83. It will be necessary to return to this passage in the adjudicator’s reasons, because, for the purposes of this particular case, the plaintiff submitted that very wide powers of search without a warrant were conferred by such an order. However, the adjudicator’s statement of his understanding as to the limit of the powers undermines the proposition that he acted for an improper purpose.

84. Secondly, the adjudicator stated that he had given “[c]areful consideration … to your legal representative’s submissions that many of the restrictions imposed on a person subject of a FPO already apply to you as your convictions for prescribed offences prohibit the issuance of a firearms licence or permit to you for 10 years from the date of your conviction, being 24 March 2014. However, despite those convictions which include the cultivation of a prohibited drug, cannabis was again found on your property.”

85. Read in context, this passage did not imply that the order was being made to allow searches for unlawful drugs, but merely to indicate that although the convictions for the firearms offences carried with them an incapacity to obtain a licence for 10 years, there was ongoing concern that, even without a licence, the plaintiff might attempt to obtain a firearm.

86. There is nothing in these passages, nor in any other part of the adjudicator’s reasons, to support an inference that he acted for an improper purpose. Ground 4 is rejected.

Scope of powers under firearms prohibition order

87. The further matter noted above concerns the proper scope of activity permitted by a firearms prohibition order. One effect of such an order is to place the person at risk of serious offences, carrying significant maximum penalties, for acquiring, possessing or using a firearm, a firearm part, or ammunition for any firearm: s 74(1), (2) and (3). There are further offences where a firearm or firearm part or ammunition is found on premises at which the person is residing. (There are defences to that last prohibition.) The key provision as to enforcement is s 74A which provides:

74A   Powers of police to search for firearms in possession of person subject to firearms prohibition order

(1) The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3).

(2)   A police officer may—

(a)   detain a person who is subject to a firearms prohibition order, or

(b)   enter any premises occupied by or under the control or management of such a person, or

(c)   stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person,

and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.

(3   In this section, premises includes any place, whether built on or not.

88. A provision which gives powers to police to undertake a warrantless search should not be read more broadly than is necessary to give effect to its stated purpose. The powers conferred include entering premises occupied by a person subject to an order and searching a vehicle or vessel under the control of such a person. However, it is clear that an officer can only (for example) enter premises occupied by a person subject to an order for the purpose of determining whether he or she has committed an offence under the first three prohibitions in s 74. Further, such entry must be “reasonably required” for that purpose, meaning that it must be reasonably necessary. It may appears that (i) the officer must hold a belief as to what is reasonably required, (ii) there is an objective test of reasonableness to be applied to the officer’s belief, and (iii) that test suggests a need for proper grounds for holding such a belief. This understanding is not far removed from the requirements of an officer undertaking a warrantless search under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

89. The plaintiff, for his own purposes in this proceeding, contended that a significantly broader interpretation should be given to the power. He referred to the decision of this Court in Director of Public Prosecutions (NSW) v Shaba. [18] That case involved an appeal by the Director against a decision of a magistrate excluding evidence of drugs found following a search of a vehicle, purportedly justified under s 74A of the Firearms Act. The judge identified the issue in the following terms:

“[3] … The learned magistrate held that s 74A did not justify the search in circumstances where the officer did not at the time hold a suspicion that the defendant had committed an offence against s 74(1), (2) or (3) by having in his possession a firearm, a firearm part or ammunition. Whether or not her Honour erred in dismissing the charges therefore turns upon the correct interpretation of s 74A.”

18. [2018] NSWSC 811 (Fagan J).

90. The Court then held, in addressing that issue:

[17] Upon that interpretation, subs (1) limits both the occasions on which a search may be conducted and the extent of the search. The limit is whatever is “reasonably required” in order to determine whether the person subject to a prohibition order has possession of a firearm, firearm part or ammunition. Subsection (1) is a clearly expressed criterion of the manner of exercise of the search power, by reference to its reasonableness as a means of achieving its statutory object. It does not stipulate a pre-requisite to the exercise of power by reference to the state of mind of the police officer. The subsection does not state that an officer who is to exercise the power of search must hold a suspicion or belief that any of subs (1), (2) or (3) of s 74 has been breached, nor any other suspicion or belief.

[18] The defendant submitted that if s 74A(1) should be interpreted as not requiring any more than that the power of search under subs (2) be exercised reasonably then it would serve no purpose because that limitation would be imputed without express words. The proposition that the legislature will be taken to intend that a power conferred should be exercised reasonably is well supported by authority: Kruger v The Commonwealth (1997) 190 CLR 1; [1997] HCA 27 at 36; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650 [126] (Gummow J) and Abebe v Commonwealth (1999) 197 CLR 510 at 554 [116]. The defendant’s counsel referred to Uber BV v Howarth [2017] NSWSC 54 where these authorities were applied at [143].

[19] I do not accept this argument. Section 74A(1) as I interpret it fulfils a function because it prescribes that the power of search is to be exercised in order to determine whether specified subsections of s 74 have been infringed. It reduces the scope of the search power. There is no occasion to read into s 74A(1) a requirement that the police officer should hold a suspicion, in order to give the subsection work to do.”

91. The function of the phrase “reasonably required” in s 74A(1) is unclear. It may qualify the scope of a permitted detention and search, or it may qualify the occasion. If the former, it may limit the area of a person, vehicle or premises that can be searched (though a bullet could be found anywhere). If the latter, it could preclude searches which are random in the sense that the officer has no reason to believe that any relevant object is present. The phrase could apply to both scope and occasion.

92. The section is not well-structured. Subsection (1) allows an exercise of power “for the purpose of determining whether a person has committed” a class of offence. Why it is expressed in the past tense is unclear. Subsection (2) allows a search “for” firearms etc. Both provisions identify a purposive element, but differently conceived.

93. The better view may be that “reasonably required” is a criterion governing both the scope of, and the occasion for, an exercise of power. A suspicionless search can have few limits; it can occur at any time and with any frequency. It would be inherently arbitrary and therefore almost incapable of abuse. To the extent that Shaba rejected the need for any reason to carry out a search, beyond the existence of a firearms prohibition order, it is not, in my view, self-evidently correct. However, it is sufficient for present purposes to say that I am not persuaded that the effects of such an order are as draconian as the plaintiff contended.

Conclusions

94. Each of the grounds of judicial review having been rejected, the summons must be dismissed. The Court makes the following orders:

1. Grant the plaintiff an extension of time within which to file his summons for judicial review up to and including 7 October 2020.

2. Dismiss the summons.

3. Order that the plaintiff pay the defendant’s costs of the proceedings.

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Endnotes

Decision last updated: 17 March 2021