DWK v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2019-07-10

Introduction

On 4 July 2018 the Commissioner of Police (the Commissioner) made a firearms prohibition order against DWK, a minor aged 14, under s 73(1) of the Firearms Act 1996 (NSW). That decision was subsequently affirmed on internal review under s 53 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) on 9 November 2018.
DWK then applied to the Tribunal for administrative review of that decision under the ADR Act on 10 December 2018.
The Commissioner submits that the Civil and Administrative Tribunal does not have jurisdiction to review a decision to issue a firearms prohibition order under the ADR Act. This is so because, as a minor, DWK is a disqualified person under the Firearms Act, and could not be lawfully issued with a firearms licence or permit. As such, the Commissioner says that s75(1A) of the Firearms Act provides that DWK "may not apply for a review of a firearms prohibition order."
In submissions DWK accepts that "on the face of the legislation" the Commissioner is correct, but asserts that, for a number of reasons the Firearms Act should be construed so to allow DWK to seek administrative review under the ADR Act of the decision to make a firearms prohibition order against him.
At a directions hearing held on 26 February 2019 directions were made for the filing of submissions by the parties relating to the jurisdictional issue. The issue of jurisdiction would then be decided in the absence of the parties.
The matter has since been allocated to me to determine the jurisdictional issue on the papers.
On 8 May 2019 the Registrar wrote to the parties on my behalf indicating that, given the applicant's youth, I was considering of my own motion making a non-disclosure order under s 64(1)(a) of the Civil and Administrative Tribunal 2013 Act (NSW) (the CAT Act). Both parties have since consented to that proposal. As consequence I will make an order under s 64(1)(a) of the CAT Act prohibiting disclosure of the applicant's name or of any material that may lead to his identification

Material before the Tribunal

In considering this application I have had regard to the following written material: 1. Application filed 10 December 2018 and attached internal review dated 9 November 2018. 2. Respondent's submissions on jurisdiction received 19 March 2018. 3. Applicant's submission received 12 April 2019. 4. Respondent's submission in reply received 16 April 2019.
Based on the submissions and materials provided by the parties I am satisfied under s 50 of the CAT Act that a hearing is not required to determine the issue of jurisdiction.

Relevant Legislation

The central piece of legislation in issue here is the Firearms Act. The underlying principles and objects of the Act are set out in s 3: (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
The Firearms Act establishes licencing (Part 2) and permit (Part 3) schemes and makes the possession or use of firearms without a licence or permit an offence an offence (see s 7 and 7A). In regulating who may be licenced s 10(2)(a) provides that: (2) An applicant for a licence must: (a) if the applicant is a natural person, be of or above the age of 18…
Section 11(5) goes on to provide relevantly: (5) A licence must not be issued to a person who: (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or 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), or (d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or (e) is subject to a firearms prohibition order, or (f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000.
Section 11(5) is mirrored by s 29(3) with respect to persons to whom a permit must not be issued.
Section 32, however, makes provision for the issue of minor's firearms permits in defined circumstances to persons under 18 who are to be very closely supervised. The minimum age for the issue of a minor's firearms permit is 12: see cl 53 of the Firearms Regulation 2017 (NSW). There is no suggestion that DWK has ever held or applied for a minor's firearms permit.
Part 7 of the Firearms Act is concerned with firearms prohibition orders. Section 73(1)provides for the making of such an order: (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.
Sections 74 contains provisions setting out the effect of a firearms prohibition order. These include, among others, prohibitions: 1. on persons the subject of firearms prohibition order's acquiring, possessing or using firearms, firearms parts or ammunition (s 74 (1) to (3), with specified penalties for breach; 2. on supplying firearms, firearms parts or ammunition to persons under a firearms prohibition order (s74(4)) with specified penalties for breach (s 74(5)); and 3. on firearms, firearms parts or ammunition being found on premises where a person under an firearms prohibition order is residing (s 74(6)) with specified penalties for breach.
Section 74A provides Police with powers of search with respect to persons under firearms prohibition orders. It provides: (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.
Section 74B contains a provision requiring the Ombudsman to keep Police use of those search powers under scrutiny and to reports on them.
Part 8 of the Firearms Act (s 75) is concerned with administrative review of under the ADR Act of certain decisions made by the Commissioner under the Firearms Act. It relevantly provides: (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 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. (1A) 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. (1B) 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. …

Brief outline of the Commissioner's original submissions

The Commissioner says that because DWK is only 14 years old, any application he might make for a licence or permit under s 11(5) and 29(3) of the Firearms Act must be refused as he is not yet 18.
Because the Commissioner is bound to refuse DWK an application for a licence or permit, the Commissioner says that the Tribunal does not have administrative review jurisdiction under the ADR Act to review the decision to issue the firearms prohibition order to DWK. The enabling legislation (the Firearms Act) expressly denies the Tribunal such jurisdiction in s 75(1A).
The Commissioner relied on the decision in Bahsa v Commissioner of Police, NSW Police Force [2019] NSWCATAD 17 where Senior Member Ransome wrote, at [74]: ... 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.

Brief outline of DWK's submissions

At the heart of DWK's submissions are his minority, and the unfairness to him that flows from the making of a firearms prohibition order and from the provision in s 75(1A) prohibiting him from seeking internal review. DWK argues that the Tribunal should conclude that parliament did not intend to s 75 of the Firearms Act to apply to a minor.
In support of this contention DWK relies on: 1. Two extracts from the second reading speeches which DWK submitted showed that the provisions in s 75(1A) were intended to prevent criminals abusing the appeals process. DWK argues that the Tribunal should presume that Parliament did not intend that "minors would be deprived of external review rights." 2. A submission that the decision to make him the subject of a firearms prohibition order is contrary to Articles 3 and 40 of the International Convention of the Rights of the Child. Article 3 requires that when making decisions regarding a minor, administrative authorities, among others, treat the best interest of the child as the primary consideration. Article 40 is concerned with ensuring a right of review for minors considered to have infringed the penal law. 3. A submission that the practical effect of the firearms prohibition order is to expose him to the search powers contained in s 74. These are said to allow for search without a warrant, without a requirement for reasonable suspicion that he is in possession of firearms (including parts or ammunition), and, without limit as to how long such searches can occur for. 4. A submission that the effect of a firearms prohibition order on DWK is to duplicate prohibitions on use and possession which are already in place elsewhere in the Firearms Act, due to his age. It is suggested that this emphasises that the true benefit to the Commissioner of Police as a result of the firearms prohibition order, is the use of enhanced search powers and the suppression of DWK's common law rights. The principle purpose underlying the issue of a firearms prohibition order, keeping the person who is the subject of the order away from firearms, is already achieved in the case of a minor. DWK cited Gleeson CJ in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124; 78 ALJR 1099 at [19-20] (references omitted): 19 Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". 20 A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament. 1. DWK then submitted that s 75 of the Firearms Act should be interpreted beneficially because it confers a right to review. DWK relied on Cole v Director General Department of Youth and Community Services (1986) 7 NSWLR 541 at 543, where Kirby J said: … the provision for appeals is a beneficial one, conferring on employees of the Public Service entitlements to the review of decisions which were not enjoyed by Crown servants by the prerogative or at common law and which are not generally enjoyed, at least to the same extent, by employees in the private sector: see Suttling v Director-General of Education (1985) 3 NSWLR 427. The entitlement to appeal conferred by s 20 is a beneficial entitlement of employment. It should not be excluded or confined by the exceptions provided in s 21, except to the extent that those exceptions are clear. Any doubt about the scope of s 21(1)(e) should be resolved in favour of the enhancement of the right of appeal and against its diminution by the operation of the exclusion.
In conclusion DWK argued that Parliament when enacting s 75 had not considered the position of minors. When one considers s 75 in that context, having regard to its purpose, it should be read down so as to enable DWK to seek administrative review.

The Commissioner's reply

In reply the Commissioner argued, in summary, that: 1. The meaning of s 75 of the Firearms Act advanced by the Commissioner is that intended by the legislature, when one has regard to the plain words of the section, in the context of the Act having regard to its purpose: SZTAL v Minister for Immigration and Broder Protection (2017) 91 ALR 393, per Keifel CJ, Nettle and Gordon JJ at [14]. 2. A plain reading of s 75(1A) makes it clear that a person under 18 is a disqualified person. 3. There is no ambiguity in s75(1A). The Applicant has not pointed to any ambiguity or textual indications that a person under 18 is not a disqualified person. 4. In the absence of ambiguity there is no reason to have recourse to international conventions: Chu Kheng Lim v Minister for Immigration and Ethnic Affairs v Teoh (1995 183 CLR 273 at 287. 5. The applicant's submissions ignore the stated purposes of the Firearms Act and the nature of an firearms prohibition order. 6. There is no common law right to apply for administrative review, so the analogy with the common law rights discussed in Al-Kateb v Godwin is simply inapplicable. The submission also ignores the fact that the Firearms Act provides that there is no right to use and possess firearms: it is a privilege. 7. The Firearms Act is legalisation aimed at ensuring public safety.

Consideration

In CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 the Court (Brennan CJ, Dawson, Toohey and Gummow JJ) explained that in interpreting statutes: It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the (1997) 141 ALR 618 at 635 context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. …
In my opinion the provisions of s 75(1A) of the Firearms Act, when read, with s 11(5) and 29(3), make it clear that persons (disqualified persons) whom s 11(5) and 29(3) provide must be refused a licence or a permit, may not seek administrative review of a decision to make a firearms prohibition order against them.
The language is clear. That meaning is entirely in keeping with the purposes of the Act as whole as disclosed by the principles underlying the act, its stated objects and the context of the Act as a whole.
I agree with the Commissioner that the Firearms Act is principally focussed on public safety by ensuring the that the possession of firearms is tightly regulated and subject to strict controls. I think that little assistance can be a gained from the second reading speeches on the introduction of s 75(1A) because the meaning of the text is clear. In this regard I note that Pearce and Geddes, Statutory Interpretation in Australia, 7th ed [2011] at 3.4 sound the following caution: The fundamental task of a court is to interpret and apply the words of the legislation. It is not permitted to give effect to ministerial intent as expressed in reports of parliamentary debates at the expense of the enacted words. See the warning sounded by the High Court in Re Bolton; Ex parte Beane (1987) 162 CLR 514; 70 ALR 225 per Mason CJ, Wilson and Dawson JJ at 518; 227-8: as to which see [3.24]. …
In my opinion the meaning of s 75(1A) clear and unambiguous. I agree with the Commissioner that, in the absence of ambiguity, there is no reason to have recourse to international conventions.
Section 34 of the Interpretation Act 1987 (NSW) - the equivalent of s 15AB of the Acts Interpretation Act 1901 (C'th) - is a provision that enables regard to be had to extrinsic evidence when determining the meaning of a legislative provision. This is to be contrasted with resorting to extrinsic evidence to determine the context and purposes of an Act at common law, as discussed by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd.
Section 34 relevantly provides: (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
In the present case as there is no ambiguity or obscurity in s 75(1A) of the Firearms Act, and there is no suggestion that its ordinary meaning is manifestly absurd or unreasonable. There are submissions that the operation of the section with respect to minors is oppressive, and suggestions that this does not reflect the true intention of the legislature. The applicant, however, does not suggest that the plain wording of the section is ambiguous or leads to a result that is manifestly absurd or unreasonable. As a consequence extrinsic evidence cannot be used to determine a meaning for s 75(1A) of the Firearms Act other than its ordinary and agreed meaning.

Conclusion

In those circumstances I am satisfied that DWK is a disqualified person and may not seek an external review of a decision to make a firearms prohibition order against him under s 74(1A) of the Firearms Act
As a consequence I make the following orders. 1. Order under s 64(1)(a) of the Civil and Administrative Tribunal Act prohibiting disclosure of the applicant's name or of any material that may lead to his identification 2. The application is dismissed for want of jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 10 July 2019

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