Bahsa v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2019-01-11

REASONS FOR DECISION

The applicant, Mr Abdullah Bahsa, is seeking review of a decision made by the respondent, the Commissioner of Police, NSW Police Force, to make a firearms prohibition order against him. The order was made on 14 May 2018 under s 73 of the Firearms Act 1996. The effect of a firearms prohibition order is to prevent a person from acquiring, possessing or using firearms.
Under s 75(1)(f) of the Firearms Act a person can apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a firearms prohibition order made against the person. There is, however, a qualification to that right of review contained in s 75(1A). That section provides: Despite subsection (1), a person may not apply for a review of a firearms prohibition order made against the person if the person would be required under section 11(5) or 29(3) to be refused a licence or permit (a disqualified person) had the person not been subject to a firearms prohibition order.
The Commissioner states that Mr Bahsa is a "disqualified person" within the meaning of the Firearms Act and the Tribunal therefore has no jurisdiction to review the decision to make a firearms prohibition order against him. The Commissioner states that this is because Mr Bahsa has been subject to two apprehended violence orders in the past 10 years and has been convicted of stalk/intimidate intend fear physical harm (domestic) offences within the last 10 years.

Who is a disqualified person?

As set out above, s 75(1A) refers to a "disqualified person" and, the Commissioner argues, the section prevents such a person from seeking review by the Tribunal of a decision to impose a firearms prohibition order.
Section 75(1A) provides that a disqualified person is a person who would be required under section 11(5) or 29(3) of the Firearms Act to be refused a licence or permit.
Of importance to this application is section 11(5) which relevantly prevents the Commissioner from granting a licence to a person who: 1. … 2. 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, 3. is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked).
Clause 5 of the Firearms Regulation 2017 prescribes offences for the purposes of s 11(5)(b). Clause 5(1)(d)(iii) prescribes "an offence involving stalking or intimidation" as an offence which disqualifies a person from being issued with a licence.

Is Mr Bahsa a disqualified person?

The Commissioner contends that Mr Bahsa is a disqualified person because he has been convicted in an Australian jurisdiction of an offence "involving stalking or intimidation" and that the offence occurred within the last 10 years. It is plain from Mr Bahsa's criminal history that the two offences under the Crimes (Domestic and Personal Violence) Act occurred within the relevant 10 year period.
In Farah v Director-General, Department of Finance and Services [2014] NSWCATAP 23 the Appeal Panel considered a provision in the Property, Stock and Business Agents Act 2002 which prevented a person from holding a licence under that Act if the person had a conviction in NSW or elsewhere for an "offence involving dishonesty". The Appeal Panel held that the starting point was the ordinary meaning of the phrase "an offence involving dishonesty" and noted that, whether any broader interpretation was warranted depended on the meaning of the word "involving".
The Appeal Panel noted that, as a matter of statutory interpretation, the provision refers to a conviction for an offence involving dishonesty. The provision does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence and there should be no separate factual inquiry by the decision-maker into whether the person acted dishonestly. This is particularly the case where disqualification from holding a licence is mandatory upon conviction for the offence. The Appeal Panel stated that the offence itself that must "involve dishonesty" Furthermore, the offence must be one which involves dishonesty "without further inquiry".
In Nguyen v Commissioner of Police, NSW Police Force [2018] NSWCATAD 242 the Tribunal held, in the context of considering the meaning of "offence involving dishonesty" in the Firearms Regulation, that it was bound by the decision in Farah. I agree that the principles as espoused in Farah are applicable to the prescribed offences set out in the Regulation concerning firearms licences.
Section 13(1) of the Crimes (Domestic and Personal Violence) Act provides that "a person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence". At issue is whether that is an offence "involving stalking or intimidation".
In my view, on any plain reading, an offence under s 13 of the Crimes (Domestic and Personal Violence) Act is an offence "involving intimidation and stalking". This also appears to have been the conclusion reached by the Tribunal in Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 where the Tribunal was dealing with the same offence in the context of the revocation of a firearms licence.
I therefore find that Mr Bahsa is a disqualified person because he has been convicted of an offence "involving stalking or intimidation" which is an offence prescribed by the Firearms Regulation for the purposes of s 11(5)(b) of the Act.

Does the Tribunal have jurisdiction to review the decision?

The Commissioner submits that Mr Bahsa, as a disqualified person, cannot seek review of the decision to make a firearms prohibition order against him. Mr Bahsa does not agree and submits that the decision is reviewable, primarily because of certain provisions contained in the Administrative Decisions Review Act.
Section 75(1A) of the Firearms Act (which states that a person cannot apply to the Tribunal for a review of a firearms prohibition order if the person is a disqualified person) is followed by s 75(1B). Section 75(1B) provides: However, the decision to make a firearms prohibition order against a disqualified person is taken to be an administratively reviewable decision for the purposes of section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 and that section applies, with such modifications as are necessary, in relation to the decision to make such an order.
Mr Bahsa applied for internal review of the decision and the original decision was affirmed on internal review. He submits that, because his application for internal review under s 53 has been finalised he, as an interested person, is able to seek review of the decision by the Tribunal under s 55 of the Administrative Decisions Review Act.
Section 55, however, makes plain that the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the Administrative Decisions Review Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". At issue therefore is whether the Firearms Act provides that a person may make an application for review to the Tribunal in circumstances where r the person is a disqualified person within the meaning of that term in the Firearms Act.
Mr Bahsa referred to the decision of the Tribunal in Thomas v Commissioner of Police, NSW Police Force [2018] NSWCATAD 202 where the Tribunal reviewed a decision of the Commissioner to make a firearms prohibition order against a person who, on the facts of the case, would appear to have been a disqualified person. I note that the issue of jurisdiction does not seem to have been raised before the member determining that matter. I also note that there is an appeal pending from the member's decision in this matter. In those circumstances it would be preferable not to express a view on the correctness of that decision.
My view, however, is that it is clear that s 75(1A) of the Firearms Act, rather than providing that applications for review can be made to the Tribunal, specifically precludes such review in certain circumstances. The fact that a decision of an administrator may be internally reviewable under s 53 does not automatically mean that the decision is further reviewable by the Tribunal. In my view, the effect of s 75(1A) and 75(1B) is to provide that, where a firearms prohibition order has been made against a disqualified person, internal review is available but the person may not apply to the Tribunal for an administrative review of the decision.
I also note that, while the issue appears not to have been specifically raised in the case, the Tribunal member in the decision of Nguyen referred to above proceeded on the basis that the Tribunal has no jurisdiction to review a decision to make a firearms prohibition order against a disqualified person.
For the reasons given above, the Tribunal has no jurisdiction to review the decision made on 14 May 2018 to make a firearms prohibition order against Mr Bahsa.

Costs

The Commissioner seeks his costs of the proceedings. The ordinary rule is that each party to proceedings in the Tribunal pays their own costs. The Tribunal may, however, order a party to pay another party's costs if satisfied that there are special circumstances which warrant such an order. Section 60 of the Civil and Administrative Tribunal Act 2013 sets out a non-exhaustive list of matters to which the Tribunal may have regard in determining whether there are special circumstances.
The Commissioner relies on the matters set out in s 60(3)(c) and (e) and submits that the applicant brought proceedings which had no tenable basis in fact or law and made an application which was misconceived and lacking in substance. The Commissioner also states that he put the applicant on notice early in the proceedings of the effect of s 75(1A).
While I have found that the Tribunal has no jurisdiction to deal with Mr Bahsa's application, that does not necessarily mean that the proceedings had no tenable basis in fact or law or were misconceived and lacking in substance, particularly as there had been matters before the Tribunal where the respondent did not oppose jurisdiction.
I note that Mr Bahsa pressed for the issue to be determined on the papers so as to reduce cost, even though the respondent asked for an oral hearing. He has not acted in a way to disadvantage to the respondent.
I do not find that there are special circumstances in this case that would warrant departure from the usual rule that each party bear its own costs.

Order 1. The application is dismissed. 2. The respondent's application for costs is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 January 2019

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