Commissioner of Police v Joseph [2015] NSWCATAP 9 | Case summary

Ground 1

In our view the Commissioner's appeal as it relates to Ground 1 is clearly made out. We will deal with that aspect of the appeal first.
The Commissioner's delegates, when making the primary decision and the decision on internal review, took into account COPS event records relating to charges laid against the respondent for obtaining financial advantage by deception. The conduct was alleged to have involved the presentation, on several occasions on 7 and 12 March 2007, of an invalid Commonwealth Bank key card to retail vendors of cigarettes and mobile telephone recharge cards. It was alleged that the transactions often involving buying out the vendor's entire stock, and the total value of the goods purchased was several thousand dollars. The charges were withdrawn at the Penrith Local Court in 2008, and dismissed.
The COPS records formed part of sleeve 3 of the material submitted by the Commissioner to the Tribunal pursuant to s 58 of the ADT Act (now s 58 of the Act as renamed, the Administrative Decisions Review Act 1997 (ADR Act). Section 58 (1) provided at the time of lodgement, and continues to provide: (1) An administrator whose 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: … (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.
In addition to the COPS event records lodged as part of the original s 58 documents, the Commissioner advised the respondent and the Tribunal on 9 July 2013, in preparation for the Tribunal hearing, that he would be filing additional material relating to the events the subject of the COPS records; and subsequently filed that material. The additional material is set out in the Commissioner's appeal documents, book 2, at pp 179-366. It covers the court attendance notices, the fact sheets and the witness statements - essentially the prosecution brief.
The respondent objected to the consideration of any of this material.
The Tribunal accepted the objection. Accordingly it did not consider the material.
The Tribunal's functions in dealing with merits review applications are the subject of section 63, which provided at the time of the Tribunal's hearing: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
It will be seen that s 63 requires the Tribunal to have regard to 'any relevant factual material'. It has as its policy antecedent s 37(1)(b) of the Commonwealth's Administrative Appeals Tribunal Act 1975 which required the administrator to lodge with the Tribunal, in addition to the statement of reasons, 'every other document or part of a document that is in the person's possession or under the person's control and is relevant to the review of the decision by the Tribunal.'
The Commissioner's submission is that the Tribunal erred in disregarding 'relevant factual material' and therefore failed to exercise properly its jurisdiction under s 63.
A key principle of merits review jurisdictions is that the correct and preferable outcome be reached by reference to all relevant material at the time of the hearing: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; McDonald v Director-General of Social Security (1984) 1 FCR 354. This principle is reflected in the terms of ss 63 and 58.
The Tribunal's reasons for upholding the respondent's objection were as follows (record below is as it is set out in the Commissioner's appeal documents, book 2, pp 92-93): JUDICIAL MEMBER: … [I am] Asked to decide as to the admissibility of evidence in relation to events in 2007 in which the applicants and others were charged with a number of offences relating to fraud. These charges were withdrawn. I understand that the reason for the withdrawal is unknown or unclear. The respondent [i.e. the Commissioner] seeks to rely on the conduct underlying the charges in relation to its assertions that the applicant is not a fit and proper person to hold a firearms dealer's licence and that it is against the public interest that he hold such a licence. The applicant is foreshadowed that he will not comment in relation to those charges and will exercise his right to silence. He is concerned that future charges in relation to these matters may be brought against him under s 208(2) of the Criminal Procedure Act. The respondent has foreshadowed that it would ask the Tribunal to draw an adverse inference from the applicant's failure to answer the allegations. I've come to the view that it would be prejudicial to the applicant for me to take the evidence into account. He's not had the opportunity to challenge the evidence and he need not be pressed to do so before this Tribunal. Coming to this view I note that the respondent did not rely on this alleged conduct in its internal review although it seeks to do so now. I also observe that the respondent has only within the last six months found the applicant to be a fit and proper person to hold a firearms licence. Coming to final view about whether he is a fit and proper person to hold a dealer's licence, there is some consistency he is a fit and proper person for one purpose under the Act but not another. I acknowledge though that it is arguable that a dealer's licence may require a higher standard than a firearms licence per se.
Consideration. In administrative review jurisdictions, especially ones that relate to licensing, it is not unknown for the administrator to draw to attention evidence led against the review applicant in criminal proceedings, even though the court may ultimately have acquitted the review applicant of the criminal charges. Nor is it unknown for the administrator to seek to rely on confidential material such as intelligence information in support of its decision adverse to the review applicant, and to ask the Tribunal to consider that evidence in camera. This case sits between these two situations.
Further, as noted by Jarvis DP in Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; 121 ALD 630 at [22] it is accepted that an administrator may, on review, seek to support the decision on a basis completely different from upon which it was originally made; and similarly a review applicant may move to have an administrator's decision set aside on grounds different from those the review applicant may have relied upon before the administrator.
The material that the Commissioner sought to rely upon, on its face, was adverse to the review applicant in relation to his integrity and honesty.
The Tribunal dealt with the objection only by reference to the issue of prejudice to the review applicant. It did not address the question of relevance. While a Tribunal has to be cautious in allowing its proceedings to be diverted into a collateral inquiry into allegations made in the past against a licence applicant, it cannot simply dismiss an application by an administrator to have past allegations considered because of possible prejudice to the applicant.
The Tribunal stands in the shoes of the administrator in this jurisdiction (see s 63(2), set out above). An administrator responsible for grant of a business licence would, ordinarily we think, regard as relevant information that might suggest that a business licence applicant had failed to behave with integrity and honesty in the conduct of significant financial transactions, especially if the conduct is said to have occurred in the relatively recent past (here 2007 prior to a business licence application made in 2012).
In our view, the Tribunal clearly erred in confining its response to the objection to the issues of prejudice raised by the review applicant.
Had the Tribunal concluded that the material was relevant, it would then have needed to construct a process that dealt fairly with the concerns raised by the review applicant as to self-incrimination (possible issuance of an evidentiary certificate, or other methods): see further, Re LLSY, previously cited, esp at [51]-[53]; Pearce, Administrative Appeals Tribunal (3rd ed, 2013), LexisNexis at [7.14]; and also, Healthcare Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323 at [43]-[46] per Basten JA. It may also be necessary to deal with any lateness of notice of an intention to examine the review applicant in regard to those matters, and any applications for a reasonable adjournment, costs and the like.
It follows from our conclusion that the appeal must be upheld.
In light of this conclusion, it is not essential that we deal at length with the other grounds of appeal. However, given the extent of argument devoted to them at the appeal hearing, we will deal with them briefly.

Grounds 2 and 3

Section 11(3) provides: (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace,
Section 11(7) provides: (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 75(1)(a) gives an applicant who has been refused a licence or permit (or where there has been a failure to issue a licence or permit) a right to apply to this Tribunal for administrative review of the decision under the ADR Act.
In support of Ground 2, it was submitted that the requirement that the Commissioner 'must not' issue a licence if the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to the public and or to the peace' (s 11(3)) constituted a 'jurisdictional fact'. A wrong finding of a jurisdictional fact, it was submitted, constituted an error of law.
The Commissioner referred in particular to the Tribunal's acceptance of the Commissioner's criticisms of Mr Joseph's conduct in making misleading statements as to the purpose of three sets of personal firearms licence applications made by him on 31 January 2012, 9 February 2012 and 22 February 2012. At this time Mr Joseph did hold a probationary pistol permit, issued on 5 November 2010. It was converted to a licence for five years on 5 January 2011. The further three sets of personal applications predated the firearms dealers licence application the subject of these proceedings (made 15 March 2012). Complicating this aspect of the case is a decision of the Commissioner made late in February 2012 to grant one of the further three personal licences sought, which covered 21 weapons.
Those further personal applications sought permission to use and possess a large number of weapons ostensibly for the purpose of recreational sports shooting and collecting, and were supported by a testimonial from the secretary of a gun club. When called on to explain why he needed so many weapons for personal use, Mr Joseph informed the police, and confirmed this in his evidence to the Tribunal, that his real purpose in making those applications had been to build up a stock for sale by his proposed firearms business. He had already embarked on that process, and had secured financial backing and was negotiating for premises. The Tribunal found that Mr Joseph had in respect of that statements of purpose made in connection with the personal applications contravened s 70 of the Act which provides that '[a] person must not, in or in connection with an application …, make a statement or provide information that the person knows is false or misleading in a material particular'. It also found that he made false statements to the gun club secretary when seeking his support for the applications, and that he only disclosed his true purpose when pressed for an explanation by the police officers responsible for reviewing the personal licence applications.
The relevant 'jurisdictional fact' for Ground 3 was put as the power of the Commissioner to refuse to issue a licence 'if the Commissioner considers that issue of the licence would be contrary to the public interest' (s 11(7)). The Commissioner submitted that the following findings of the Tribunal meant that this jurisdictional fact could only have been decided negatively to Mr Joseph: that Mr Joseph was under financial pressure; that prior to his dealers licence application being finally considered by the police he been a victim of a violent robbery involving the loss of 22 pistols (lawfully held under the two personal licences held at this point by Mr Joseph) from his home as a result of a reported robbery where he was found tied up (30 June 2012); his involvement in some violent confrontations; his conduct in misleading the Commissioner in the personal applications of January-February 2012.
Consideration. Jurisdictional fact is a legal concept of particular significance in cases where relief is sought against administrative decisions by means of judicial review. A jurisdictional fact is, typically, a fact required to be established as a pre-condition to the exercise of the statutory power or discretion in question. As stated by the High Court in Gedeon v Commissioner of the New South Wales Crimes Commission [2008] HCA 43; (2009) 236 CLR 120 at [43]-[44]. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
In addition, we note the recent discussions of what is meant by a 'jurisdictional fact' in Federal Court cases such as Marku v Republic of Albania [2012] FCA 804 per Dodds-Streeton J at [1116]-[143] (approved, Marku v Republic of Albania [2013] FCAFC 51 at [69]; special leave refused [2013] HCA Trans 275); and Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 614 at [86] ff.
Applied to an administrative decision maker (the Commissioner's delegates or the Tribunal on review), a 'jurisdictional fact' will, ordinarily, be a fact which 'enlivens' the exercise of the relevant power or discretion.
As noted by Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed. 2008) at [4.310] - 'Jurisdictional facts are mercifully rare, because of the extreme improbability of Parliament intending to give the courts the last word on most factual issues.'
According to these authors, there has been some greater readiness by the higher courts to regard a condition affecting the exercise of a statutory power or discretion, especially one expressed in objective terms, to be a jurisdictional fact where it is a fact required to be found by an administrative decision maker or a tribunal.
We will not explore at length here the arguments put in this case on this issue.
In our view, the powers invested in the Commissioner as administrator of the Act are ones typical of licensing schemes of this kind. The references to the administrator being 'satisfied' as to a subject (see s 11(3)) or the Commissioner being entitled to refuse if he 'considers' a matter to be demonstrated (see s 11(7)) involve in each case common statutory formulations. In each instance the predicate (fitness, propriety, trust, safety to the public (s 11(3)), the public interest (s 11(7)) refers to the essence of the task required to be performed by the administrator (and the Tribunal on review). These are not matters in the nature of pre-conditions or preliminary steps required to be undertaken before the exercise of the power. The go to the essence of the task committed to the administrator by the legislature.
The case-law on jurisdictional fact emphasises the need to have regard to the statutory context in which the fact said to be a jurisdictional fact appears and gives emphasis to the question of the significance of the finding in relation of that fact for the effective operation of the statutory scheme as a whole. As noted above, this analysis is almost always, concerned with matters in the nature of pre-conditions or preliminary steps which are considered to be of such importance, having regard to the place of them in the particular legislative scheme, that they should be characterised as jurisdictional facts. In Timbarra Protection Coalition Inc v Ross Mining NL and Ors [1999] NSWCA 8 Spigelman CJ explained: 40 Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. 41 Where the process of construction leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts. 42 Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. (See Craig Administrative Law 3rd ed, 1994, 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198C). Where such words do not appear, the construction is more difficult. 43 As Sir Frederick Jordan said: "When the jurisdiction of a Court is limited, the question whether a particular matter is one the actual existence of which, notwithstanding any decision of that court, is a condition of its having jurisdiction to proceed to determine the matters which lie within its general jurisdiction, or is merely one of the matters which arise for its decision in the exercise of its general jurisdiction, is frequently one of considerable difficulty. It commonly arises in relation to a statute conferring jurisdiction in which the legislature has made no express pronouncement on the subject, and in which its intention has therefore to be extracted from implications found in inferences to be drawn from the language it has used." (1935) 35 SR (NSW) 289, 298.
See further, Cabal v Attorney-General (Cth) [2001] FCA 583; (2001) 113 FCR 154 at [50]; and Spigelman, 'The Centrality of Jurisdictional Error', AGS Administrative Law Symposium Seminar Paper, 25 March 2010.
The Appeal Panel of this Tribunal exercises a statutory appeals function as defined, and is not a court with a judicial review function. The fact these administrative discretions have as their context a statute which contains clear mechanisms for their review on the merits, coupled with further appeal rights which permit (by leave) extension of the appeal to the merits, is a significant factor weighing against a conclusion that the legislation makes satisfaction of the discretion a jurisdictional fact.
Both of the discretions are expressed in wide terms. They are expressed in a way that allows the decision maker (first the Commissioner, second the review tribunal) to have regard to a wide range of considerations. The law has long recognised that their exercise involves judgments of degree and a sometimes complex process of evaluation: see, for example, Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]; and the leading authorities, Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-7; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Questions of public interest or fitness and character do not admit of an objective right or wrong answer. They fall, as we see it, within the ordinary province of matters for determination by the administrative decision maker and the Tribunal on review, and, if the law is observed in their determination (for example, regard is had to relevant considerations and relevant material) that process of determination can not be the subject of a successful error of law appeal.
Finally, we observe that the ground of review that a decision maker has failed to find a jurisdictional fact is, largely, a product of the Australian jurisprudence on the scope of the supervisory (judicial review) authority of the superior courts. The arguments put to us by the Commissioner proceeded on the basis that such a failure can properly be characterised as a 'question of law', and therefore, if demonstrated, constitutes an error of law.
The grounds for judicial review are not confined to matters traditionally classified as questions of law, and may, in some circumstances, extend to questions of fact. In our view, it is not settled, in the way we believe was assumed at hearing, that a failure properly to find a jurisdictional fact is a question of law. We note in that regard the statement of Gummow and McHugh JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 esp at [54] (footnotes omitted): The introduction into this realm of discourse of a distinction between errors of fact and law, to supplant or exhaust the field of reference of jurisdictional error, is not to be supported. The "jurisdictional fact" which supplies the hinge upon which a particular statutory regime turns may be so identified in the relevant law as to be purely factual in content. It was to prevent litigation directly on such questions of fact that legislatures stipulated the opinion of the decision-maker as to specified matters. That in turn led the courts to treat the formation of the statutory state of satisfaction as "reasonable" and thus to posit some criterion for the assessment of the factual elements which went to supply that state of satisfaction. For example, the law in question in Melbourne Stevedoring[ conditioned the power of the Australian Stevedoring Industry Board to cancel or suspend the registration of an employer upon the Board's satisfaction that the employer was "unfit to continue" to be so registered. The decision was that the facts disclosed no basis for supposing such unfitness and an order for prohibition was made. That conclusion was reached without recourse to distinctions between errors of law and those of fact.
In conclusion, we do not consider that the Tribunal was called on to determine a jurisdictional fact in exercising the discretions conferred by s 11(3) and s 11(7). We do not uphold Grounds 2 and 3.

Commissioner of Police v Joseph

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