Uzelac v Commissioner of Police, NSW Police Service

[2004] NSWADT 34

CITATION:	Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34
DIVISION:	General Division
PARTIES:	APPLICANT Wayne Sylvester Uzelac RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	033254, 033255, 022256
HEARING DATES:	16/09/2003
SUBMISSIONS CLOSED:	09/16/2003
DATE OF DECISION:	02/16/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:
REPRESENTATION:	APPLICANT J Tompson, counsel RESPONDENT M Buchanan, solicitor
ORDERS:	Date of Orders: 16 September 2003; The applications are dismissed for want of jurisdiction.

1 These proceedings relate to decisions to suspend the firearms licences held by Mr Wayne Sylvester Uzelac. Mr Uzelac is the General Manager of the Divisional Security group of companies which includes Divisional Security (Aust) Pty Ltd and Cash and Valuables Logistics Pty Ltd (“the companies”). Mr Uzelac holds three Category H firearms licences, one in his own name and one in the name of each of the companies. Category H firearms licences are issued to people who require them for their business as long as they have a special need to use a pistol.

2 Divisional Security (Aust) Pty Ltd (."DSA") was incorporated on 29 January 1996 and is in the business of providing security services, including patrols utilising unarmed guards, armed guards, and dogs. DSA was issued with Firearms Licence No. 407860088 on 25 September 1999. The expiry date of that licence is 25 September 2004.

3 Cash & Valuables Pick-Up Services Pty Ltd was incorporated on 2 July 1996 and on 26 August 2003 changed its name to Cash & Valuables Logistics Pty Ltd ("C&V"). It is in the business providing cash and valuables pick-up services and uses armed guards. C&V was issued with Firearms Licence No. 407804262 on 24 August 1999. The expiry date of that licence is 28 August 2004.

4 On 10 September 2003 Detective Sgt Richard Long (“D/Sgt Long”) of the Firearms & Regulated Industries Crime Squad, State Crime Command, visited the companies' premises at Silverwater for the purpose of conducting a random inspection.

5 The Commissioner alleges that when at the companies' premises D/Sgt Long found evidence of three breaches of the firearms legislation:

1. Ammunition was stored with firearms.

2. The firearms were not inspected every three months.

3. A register had not been kept.

6 After examining the premises and the provision made for the storage of the firearms and ammunition, D/Sgt Long served on each of the two companies and Mr Uzelac a form headed "NOTICE OF SUSPENSION OF FIREARMS LICENCE OR PERMIT" (“the suspension Notices”). Each of the suspension Notices gave notice of an indefinite suspension of the particular licence to which it related.

7 By applications dated 11 September 2003 Mr Uzelac has applied for a review of the decisions to suspend each of the licences. He has also applied for a stay of those decisions. These proceedings relate to the stay application. The matter was heard and determined on 16 September 2003 and brief reasons for decision were provided on that day. Mr Thompson, counsel for Mr Uzelac, requested that written reasons be provided in due course. These reasons are provided in response to that request.

8 At the commencement of the proceedings Ms Buchanan raised the issue of the Tribunal’s jurisdiction to deal with the matter and requested that that issue be determines as a preliminary matter. I agreed to that request and each party made submissions on the issue.

9 Ms Buchanan on behalf of the commissioner submitted that the Tribunal has no jurisdiction to hear the matter. She argues that a decision to suspend a firearms licence is not a reviewable decision. In support of that submission she relies on the meaning of the term “reviewable decision” for the purposes of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

10 Mr Thompson, Counsel for Mr Uzelac, argues that the Tribunal has jurisdiction to hear the matter. He submitted that a decision to suspend a firearms licence places a condition on the licence. The licence continues in force but the effect is that it is suspended. Mr Thompson further submitted that the scheme established by the Firearms Act 1996 (“the Act”) and the Firearms (General) Regulation 1997 (“the Regulation”) suggests that the legislature intended that decisions under that legislation are to be reviewable by the Tribunal. In his submission, the legislature would want this decision to be reviewable.

11 Mr Thompson also submitted that the suspension Notices are invalid because they provided for an indefinite suspension of the licences. He submitted that the decision to issue an invalid Notice of Suspension is a decision that is reviewable by this Tribunal.

Relevant Legislation

12 The Tribunal’s jurisdiction to review reviewable decisions is pursuant to section 38 of the ADT Act which states:

“38 Conferral of jurisdiction to review reviewable decisions

(1) Conferral of review jurisdiction 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.

Note: Section 5 defines enactment to mean:
(a) in relation to a reviewable decision - an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or

(b) in any other case - an Act (other than this Act).

(2) When statutory rules may confer jurisdiction to review decision Nothing in subsection (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by an Act (other than this Act).

(3) Preconditions for applications laid down by enactment If an enactment makes provision for applications to be made to the Tribunal in respect of a reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enactment only if those conditions are satisfied.”

13 The term “decision” is defined in section 6 of the ADT Act which provides in part:

“ 6 What is a decision?

(1) General meaning A decision includes any of the following:

(a) making, suspending, revoking or refusing to make an order or determination,

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d) imposing a condition or restriction,

(e) making a declaration, demand or requirement,

(f) retaining, or refusing to deliver up, an article,

(g) doing or refusing to do any other act or thing.

(2) Decision made under an enactment For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.”

14 Section 8 of the ADT Act provides:

“ 8 What is a reviewable decision?

A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.

15 The term “Administrator” is defined in section 9 of the ADT Act as:

“ 9 Who is an administrator?

(1) An administrator, in relation to a reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enactment concerned.

Note: There are a number of circumstances in which a person or body is taken to have made a decision. See, for example, sections 6 (2)-(5) and 38 (4) and (5) and subsection (2).

(2) he person or body specified by an enactment as a person or body whose decisions are reviewable decisions is taken to be the only administrator in relation to the making of a reviewable decision even if some other person or body also had a role in the making of the decision.”

16 Section 19 of the Act provides the Commissioner with power to impose conditions on a licence as the Commissioner thinks fit. Section 19 provides

“ 19 Conditions of licence

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions:

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,

(b) the licensee must not permit any other person to possess or use any firearm in the licensee’s possession if that other person is not authorised to possess or use the firearm,

(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee’s facilities in respect of the storage and safe keeping of the firearms in the licensee’s possession,

(d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,

(e) the licence cannot be transferred to another person.

(3) A licence is subject to such other conditions as may be prescribed by the regulations.”

17 Section 22 of the Act provides the Commissioner with power to suspend a licence in certain circumstances. Section 22 provides:

“ 22 Suspension of licence

(1) The Commissioner may, if the Commissioner is satisfied there may be grounds for revoking a licence, suspend the licence by serving personally or by post on the licensee a notice:

(a) stating that the licence is suspended and the reasons for suspending it, and

(b) requesting that the person provide the Commissioner with reasons why the licence should not be revoked.

(2) The Commissioner must suspend a licence in accordance with this section if the Commissioner is aware that the licensee has been charged with a domestic violence offence within the meaning of the Crimes Act 1900 or the Commissioner has reasonable cause to believe that the licensee has committed or has threatened to commit a domestic violence offence within the meaning of that Act.

(3) A suspended licence does not authorise the possession or use of firearms during the period specified in the notice suspending it.”

18 Section 75(1) of the Act provides for review of certain decisions by this Tribunal. Section 75(1)(b) provides for review of a decision by the Commissioner to impose a condition on a licence. Section 75(1) 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.”

19 Clause 117 of the Regulation prescribes decisions are for the purposes of section 75(1)(g) of the Act:

“117 Prescribed decisions for purposes of applications to Administrative Decisions Tribunal under section 75(1)(g)

(1) The following decisions are prescribed for the purposes of section 75(1)(g) of the Act:

(a) a decision of the Commissioner under clause 32 refusing an application to change the premises to which a firearms dealer licence relates,

(b) a decision of the Commissioner under Part 8 refusing or failing to grant an approval under that Part,

(c) a decision of the Commissioner under Part 8 imposing conditions on an approval under that Part (or varying any such condition),

(d) a decision of the Commissioner under Part 8 revoking an approval under that Part,

(e) a decision of the Commissioner under Part 9 refusing or failing to grant an approval under that Part,

(f) a decision of the Commissioner under Part 9 imposing conditions on an approval under that Part.

(2) The persons who may make an application to the Administrative Decisions Tribunal under section 75 (1) (g) of the Act in relation to the decisions referred to in subclause (1) (e) and (f) are limited to a secretary or other relevant office holder of the club concerned.”

20 The issue in this application is whether a decision to suspend a firearms licence is reviewable by this Tribunal. The Commissioner asserts that the Tribunal only has power to review a decision where it is given that power under an enactment. It is not in dispute that under section 75(1) of the Act the Tribunal is given power to review a range of decisions made by the Commissioner. Included in the jurisdiction is the power to review a decision refusing or failing to grant a licence or permit, a decision imposing conditions on a licence or permit, and a decision revoking a licence or permit. It is also not in dispute that there is no specific provision for review of a decision to suspend a licence within section 75(1) of the Act.

21 Mr Uzelac, argues that the a decision to suspend a licence is in fact a decision imposing conditions on a licence because while the licence continues in force, the effect of the suspension is that Mr Uzelac is unable to possess or use firearms during the period of the suspension. Counsel for Mr Uzelac argues that the decision is therefore reviewable by this Tribunal.

22 The Commissioner does not concede that the suspension is the imposition of a condition on the licence. Ms Buchanan argues that the issue of suspension is dealt with in separate section of the Act and therefore a decision to suspend a licence must be seen as independent of a decision to impose a condition on a licence.

23 As mentioned above, the Commissioner’s power to impose conditions on a licence are to be found in section 19(1) of the Act. However, in my opinion, the terms of the Commissioner’s suspension notice cannot be interpreted to mean that he has exercised his power under that sub-section. It is apparent from the wording of the Notice that it issued under either section 22 or section 30 of the Act. The Notice states:

“I, Richard Long being a prescribed member of the police service for the purpose of sections 22 and 30 of the Firearms Act 1996, do hereby give notice of the suspension of the abovementioned authority…”

24 Even if the Commissioner had purported to exercise his powers under sub-section 19(1) of the Act, in my opinion, it would have been an invalid exercise of power as the imposition of conditions on a licence is pursuant to section 22 of the Act. That section would be rendered devoid of the application intended by the legislature if the interpretation urged by Mr Thompson were accepted. This could not have been the intention of the legislature.

25 It follows, in my view, that the Commissioner’s decision to suspend a licence is not a decision to impose a condition on the licence. Accordingly, the jurisdiction to review the decision to impose a condition on a licence does not assist Mr Uzelac.

26 Having reviewed the legislation that provides the jurisdiction in relation to decision by the Commissioner relating to licences, I am unable to ascertain any source of jurisdiction to review a decision by the Commissioner to suspend a licence. In the circumstances, I am not satisfied that the Tribunal has that jurisdiction. In my view, the legislature has specifically considered the powers that should be given to the Tribunal in relation to review of decision by the Commissioner and has determined to exclude the power to review a decision to suspend a licence.

27 I note that Mr Thompson has also submitted that the suspension Notices issued by D/Sgt Long provided for an indefinite suspension of the licences and therefore they failed to comply with the requirements of section 22(3) of the Act. Mr Thompson has further submitted that the decision to issue an invalid Notice of Suspension is a decision that is reviewable by this Tribunal. While I accept that those suspension Notices may be invalid because of the indefinite period of suspension, I do not agree that the decision to issue those Notices is a decision that is reviewable by this Tribunal.

28 For the same reasons that I have given for my view that the Tribunal does not have jurisdiction to review a decision by the Commissioner to suspend a licence, I do not accept that the Tribunal has jurisdiction to review a decision by the Commissioner to issue an invalid Notice of Suspension.

29 It follows, in my view, that the Tribunal has no power to hear any of the applications that Mr Uzelac has brought. Accordingly the applications must be dismissed.

Orders

The applications are dismissed for want of jurisdiction.