Esber v Commissioner of Police, NSW Police Force [2005] WASCA 141 | Case summary

REASONS FOR DECISION Introduction 1 Mr Esber has held a firearms dealer licence since 4 June 1986 under the Firearms Act 1996 and its predecessor. 2 On 4 August 2005 was convicted by the Parramatta Local Court of five counts of possessing child pornography, fined $1,000, and sentenced to 300 hours community service. 3 Mr Esber's firearms dealer licence was due to expire on 30 June 2008. On 2 June 2008 he reapplied for a new firearms dealer licence. On 5 July 2008 a new firearms dealer licence was issued to him, to expire on 30 June 2013. 4 On 18 November 2008 the Firearms Registry gave notice to Mr Esber of a decision to revoke that licence on the basis that it should never have been issued to him. The Firearms Act 1996 now requires that person with convictions for offences such as his, be refused licences under the Act. The Registry explained that at the time the licence was issued it was not aware of these convictions due to a 'systems error.' This was so despite the fact that Mr Esber disclosed in his application that he had been convicted of a relevant offence. 5 Mr Esber sought an internal review of that decision and made submissions as to why it was wrong. On 15 January 2009 the decision was affirmed on internal review. 6 On 23 February 2009 Mr Esber filed an application to review that decision with this Tribunal. The Legislation 7 In discussing the application of the Firearms Act 1996 it is important to bear in mind the principles and objects underlying the act set out in s.4 of the Act which provides: (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 sales 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. 8 Section 4 of the Act contains a definition of firearms dealer: " firearms dealer means a person who, in the course of carrying on a business or in carrying out the person's duties as a club armourer: (a) manufactures, purchases, sells, transfers, tests, repairs or converts firearms or firearm parts, and (b) possesses firearms or firearm parts for the purpose of doing anything referred to in paragraph (a)." 9 The authority conferred on a firearms dealer by a firearms dealers licence is set out in s.8: " Firearms to which the licence applies : - the kinds of firearms specified in the licence. Authority conferred by the licence: In the case of a firearms dealer other than a club armourer, authorises the licensee and (subject to the conditions of the licence and the regulations): (a) employees or directors of the corporation specified in the licence, or (b) employees of the partnership so specified, or (c) employees of the individual so specified, who are eligible to be issued with a licence and who are authorised in writing by the Commissioner, to possess, manufacture, convert, purchase, sell, transfer, repair, maintain or test, in the course of carrying on the business of a firearms dealer, and only at the premises specified in the licence, any firearm to which the licence applies, and to possess, manufacture, purchase or sell ammunition for those firearms. … 10 Section 10 of the Act is concerned with applications for a licence under the Act. Section 11 is concerned with the issue of licences. Relevantly, it provides: "(1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made. (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, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (3A) … (5) A licence must not be issued to a person who: (a) … (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 (6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person. (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. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence." 11 The Firearms Regulation 2006 contains provisions setting out mandatory and discretionary grounds for refusing a licence. Offences which disqualify applicants are prescribed by clause 5, paragraph (d) which, until 31 December 2008, provided: Offences of a sexual nature An offence of a sexual nature, being: (i) an offence under Division 10 of Part 3 of the Crimes Act 1900, or (ii) an offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence referred to in subparagraph (i), or (iii) an offence under Division 15 of Part 3 of the Crimes Act 1900, or (iv) an offence under section 11G of the Summary Offences Act 1988, or (v) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence referred to in subparagraphs (i)-(iv), or (vi) any other offence that, at the time it was committed, would have been an offence referred to in subparagraphs (i)-(iv), or (vii) an offence of attempting to commit, threatening to commit or conspiring to commit an offence referred to in subparagraphs (i)-(vi). 12 On 1 January 2009 clause 5(d)(iii) of the Firearms Regulation 2006 was amended by the Crimes Amendment (Sexual Offences) Act 2008 by inserting the words "or 15A" after "Division 15". Division 15A of the Crimes Act 1900 is concerned with child pornography and includes s 91H. This creates an offence relating the production, dissemination and possession of child pornography. 13 Section 24 if the Act is concerned with the revocation of licences. Relevantly it provides: (1) … (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations. (3) … 14 Clause 19 of the Regulation provides an addition al ground. It provides: The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Closed Hearing 15 Ms Duvall who appeared for the Commissioner applied, under s.75(2) of the Administrative Decisions Tribunal Act 1997, for the Tribunal to have regard to confidential material filed and to make submission in the absence of the Applicant. She also sought an order that the confidential material and evidence led before the Tribunal not be published or disclosed to Mr Esber. 16 I explained to Mr Esber the provisions of s.75(2) of the ADTA. 17 I took the view that I should look at the confidential material relied on by the Respondent to determine whether it should be treated in confidence. Having done so I indicated that I thought the information should remain confidential, but that I found it lacking in substance and of little weight. 18 Ms Duvall nonetheless sought to make confidential submission as to the relevance of the material. I excluded Mr Esber and the public from the hearing so that she could do so, and made a non-disclosure order in relation to that evidence. 19 In doing so I was cognizant of the view expressed by the Appeal Panel in QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59, at [16] to [21] that - "16 Closed Hearings . We agree that the Tribunal should, in reviewing the Commissioner's exercise of discretion, adopt an approach which maintains the confidentiality of any information upon which the Commissioner has relied if that is the wish of the Commissioner. We see the maintenance of confidentiality of sensitive information as the principal objective of s 15(7). It is the case that the provision also dispenses the Commissioner from the requirement to give reasons. While, generally speaking, the Tribunal 'stands in the shoes' of the Commissioner when engaged in the task of merits review, it does not follow that the Tribunal is also dispensed from the obligation to give reasons. … 19 A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West (1985) 159 CLR 550. See also Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC 40 at pp 113-114 per Lord Morris; De Verteuil v Knaggs [1918] AC 557 at 560-561. Natural justice is a fundamental aspect of the judicial process: Western Australia v Ward (1997) 76 FCR 492 at 496-7. In a recent decision, Bennett & Co v DPP (WA) [2005] WASCA 141, the Full Court of the Supreme Court of Western Australia confirmed at paragraph 43: 'Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material. One party must not make secret communications to the court (emphasis supplied): Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at 691, see also Giannarelli v Wraith (No 2) (1991) 171 CLR 592 at 605 per McHugh J'. 20 Unsurprisingly, statutory powers which permit a Tribunal to take the course adopted by the Tribunal, such as s 75(2) of the Tribunal Act, are strictly and narrowly construed, and operate only if and when there is a public interest supporting their use which outweighs the public interest in the implementation of the fundamental principles of open justice and procedural fairness: see, eg, Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 55; ABC v Parish (1980) 29 ALR 228 at 233-234 and 236; Mirror Newspapers Limited v Waller (1985) 1 NSW LR 1 at 20; Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 (26 March 2004), citing Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. Further, confidentiality must be restricted to that part of the hearing or that part of the evidence for which it is necessary in the interests of justice." 20 Having heard confidential submission I reopened the hearing and advised Mr Esber that I was unable to disclose to him the nature of the confidential evidence and arguments made by the Commissioner. I indicated that I found the confidential evidence unpersuasive and would be giving it no weight. I would however be making order under s.75(2) of the ADTA prohibiting the disclosure and publication of the confidential material and evidence. Call for Further Submissions 21 In the course of writing my reasons for decision in this matter I became concerned about a matter which had not been referred to by the Commissioner in the decision under review and had not been addressed in submissions. It concerned the fact that the provision under which Mr Esber had been convicted (s 578B of the Crimes Act 1900) was repealed at the time the Firearms (General) Regulation 2006 commenced operation. 22 As a result I asked the Registrar to write to the parties as follows: 'In this matter Judicial Member Molony reserved his decision on 15 April 2009. In the course of researching and considering his decision Mr Molony has encountered a number of matters about which he has decided to seek the views of the parties. In doing so Mr Molony notes that: - According to the 'facts sheet' contained in the s 58 documents Mr Esber was charged with and convicted of five counts of possessing child pornography contrary to 's 578(b)(2)' of the Crimes Act 1900. The conviction date was 4 August 2005, with respect to offences committed in 2004. - Section 578 of the Crimes Act 1900 was repealed by Act No 95 of 1999 (Sch 3 [17]). - Section 578B of the Crimes Act 1900, which Mr Molony considers likely to be the provision referred to in the fact sheet, was repealed by the Crimes Amendment (Child Pornography) Act 2004 No 95 with effect from 1 January 2005. - Section 578 and 578B were found in Part 16 of the Crimes Act 1900. - The Firearms (General) Regulation 2006 commenced operation on 1 September 2006. Clause 5 prescribes, among other things, mandatory disqualification requirements for the purposes of s 11(5)(b) of the Act, relating to specified offences of a sexual nature. - Clause 5 of the Firearms (General) Regulation 2006 relevantly specifies: ' For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: … Offences of a sexual nature An offence of a sexual nature, being: (i) an offence under Division 10 of Part 3 of the Crimes Act 1900, or (ii) an offence under section 38, 111, 112 or 113 of the Crimes Act 1900 that has been committed with intent to commit an offence referred to in subparagraph (i), or (iii) an offence under Division 15 of Part 3 of the Crimes Act 1900, or (iv) an offence under section 11G of the Summary Offences Act 1988, or (v) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence referred to in subparagraphs (i)-(iv), or (vi) any other offence that, at the time it was committed, would have been an offence referred to in subparagraphs (i)-(iv), or (vii) an offence of attempting to commit, threatening to commit or conspiring to commit an offence referred to in subparagraphs (i)-(vi).' The Commissioner has proceeded on the basis that these include the offences which Mr Esber was charged and convicted of. Before the Firearms Regulation 2006 commenced the Firearms (General) Regulation 1997 applied. It too made provisions for mandatory disqualification of licence applicants, but did contain any provisions with respect to offences of a sexual nature. Against that background Mr Molony intends to seek the parties' views on the following issues: 1. Whether a conviction for an offence against s 578 or 578B of the Crimes Act 1900 is a prescribed offence for the purposes of s 11(5)(b) of the Firearms Act 1996? 2. If so, a. How does clause 5 of the Firearms (General) Regulation 2006 refer to and include those offences (against s 578 or 578B of the Crimes Act 1900) as prescribed offences; and b. What flows from the fact that that s 578 or 578B of the Crimes Act 1900 were repealed before the Firearms (General) Regulation 2006 was made or commenced; 3. If not, what is the correct and preferable decision with respect to Mr Esber's application for a firearms dealer licence? To enable the parties to present their views Mr Molony will either reconvene the hearing, so that the issues can be discussed, or put in place a timetable for further written submissions to be made on them. Mr Molony has asked that I write to you giving notice of these issues and seeking your opinions as to whether it would be better to reconvene the hearing or invite written submissions. Please let me have your advice on this issue within 7 days, following which Mr Molony will decide whether he should reconvene the hearing or invite written submissions.' 23 On 22 May 2009 the Commissioner made submissions is writing in which it was argued that a conviction for possession of child pornography under s 578B of the Crimes Act 1900 satisfied to requirement for mandatory disqualification in cl 5(vi) of the Firearms Regulation 2006 being, 'any other offence that, at the time it was committed, would have been an offence referred to in subparagraphs (i)-(iv).' The Commissioner submitted that an offence against s 578B involved the same elements as an offence for possession of child pornography under the legislation as it now stands: s 91H of the Crimes Act 1900. The Commissioner said I should apply the law at the date of my decision - The Tribunal must apply the law as if it were the primary decision maker...at common law, a tribunal conducting a merits review must apply the law in force when it considers the matter, unless the decision involves a consideration of accrued rights and liabilities at an anterior date": See Foley v Commissioner of Police [2005} NSWADT 12. 24 Mr Esber has made no written submissions Consideration 25 The Commissioner submits that the offences for which Mr Esber was convicted disqualified him from applying for a firearms dealers licence. The Commissioner argues the when his licence was due to expire and he made a fresh application for a licence, the Act required that his application be refused as he was disqualified. Despite this, the Commissioner says that the Firearms Registry inadvertently issued Mr Esber with a new firearms dealer licence. The Commissioner then, having discovered the error, revoked the licence on discretionary grounds. 26 In submission, the Commissioner argued that the decision was necessary in the public interest to ensure that all applicants for licences received like treatment. Further, the Commissioner argued that the pubic interest required that persons with convictions such as Mr Esber's should not be given the privilege of holding a firearms dealer licence. 27 In my opinion the assumptions of law upon which the Commissioner's action have been grounded are incorrect. 28 On my understanding, at the times when Mr Esber's firearms dealer licence expired, when he re-applied for the licence, when the licence was issued, and when it was subsequently revoked (on 18 November 2008), there was no provision in the Firearms Regulation 2006 that prescribed his conviction for possession of child pornography as an offence for the purposes of s 11(5)(b) of the Act, and which therefore required that his application for a firearms dealer licence be refused. The Act and Regulation at those times did not require that there be a mandatory refusal. 29 This is so for a number of reasons. First, conviction for an offence under s 587B of the Crimes Act 1900 was not an offence prescribed by cl. 5(d) of the Firearms Regulation 2006: indeed that section was repealed at the time the Regulation commenced. Secondly, a conviction for possession of child pornography under s 587B of the Crimes Act 1900 was not then an offence that would have been 'an offence referred to in subparagraphs (i) - (iv)' of cl. 5 (d), within the meaning of cl. 5(d)(vi) . The offences enumerated in those subparagraphs, at those times, did not include an offence comparable with that of possession of child pornography under s 587B. 30 The Commissioner submitted that a conviction for an offence under s 578B would have been an offence referred to in subparagraph (vi), being an offence that, at the time it was committed, would have been an offence referred to in subparagraphs (i)-(iv) (specifically s 91H of the Crimes Act 1900 - Production, dissemination or possession of child pornography.) The difficulty with this proposition is that at the times when Mr Esber's firearms dealer licence expired, when he re-applied for the licence, when the licence was issued, and when it was subsequently revoked, s 91H of the Crimes Act 1900 did not exist. It commenced on 1 January 2009 following amendments by the Crimes Amendment (Sexual Offences) Act 2008. Additionally, it was not prescribed an offence under cl. 5(d)(iii). Offences against Division 15A of Part 3 of the Crimes Act 1900 were only prescribed following the amendment to the Firearms Regulation 2006 by the Crimes Amendment (Sexual Offences) Act 2008, which also had effect from 1 January 2009. 31 I accept that if Mr Esber had applied for a licence after that date his conviction would have required a mandatory refusal because he has a conviction for a prescribed offence ( s 11(5)(b) of the Firearms Act 1996 and cl. 5(b)(iii) of the Firearms Regulation 2006). 32 The issue that then arises is whether in now making the correct and preferable decision with respect to the decision to revoke Mr Esber's firearms dealer licence, I should proceed on the basis of the law as it stood at the time the decision was made, or the law as it now stands, as the Commissioner submits. There is no indication in the Crimes Amendment (Sexual Offences) Act 2008 that the amendments it made to the Firearms Regulation 2006 were intended to have a retrospective operation. The effect of the amendment is to prescribe new circumstances, albeit ones that may have occurred in the past, which govern the granting of licences under the Act after the commencement of the amendment: see Robertson v City if Nunawading [1973] VR 819 at 824. 33 Section 30 of the Interpretation Act 1987 provides: (1) The amendment or repeal of an Act or statutory rule does not: (a) … (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or … and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. 34 In Duncan v Commissioner of Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 121 at [23] to [31] I had occasion to consider the operation of this provision. I will not repeat that consideration here, but adopt that discussion of the relevant case law. Because this case is concerned with a decision to revoke Mr Esber's firearms dealer licence, Mr Esber has an accrued right to have the question of whether or not his licence ought to have been revoked determined in accordance with the law as it stood at the time of the revocation. This is to be contrasted with the circumstances in Duncan where the applicant was applying for a renewal of a licence, to which he did not have an accrued right. It is also to be contrasted with the situation in Foley v Commissioner of Police [2005] NSWADT 12 upon which the Commissioner relied. There the Tribunal was considering a review of a decision to refuse an application for a pistol permit, which the Commissioner had refused on public interest grounds. Between the time when the Commissioner made the decision and when the Tribunal heard the review application the Firearms (General) Regulation 1997 had been amended to require a mandatory refusal of the application. The Tribunal applied the law as amended. Hennessy DP explained at [5]: At common law, a tribunal conducting a merits review must apply the law in force when it considers the matter, unless the decision involves a consideration of accrued rights and liabilities at an anterior date: Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374; Re Costello and Secretary, Dept of Transport (1979) 2 ALD 934; Commonwealth of Australia v Esber [1991] FCA 223 ; (1991) 101 ALR 35. 35 Here, because Mr Esber held a firearms dealer licence (an accrued right) and the decision in issue was to revoke that licence (accrued right), s 30 of the Interpretation Act 1987 requires that I apply the law as it stood at the time of the decision to revoke. 36 Applying that understanding of the relevant law, it becomes apparent that the fact that Mr Esber had a conviction for possession of child pornography did not require that he be refused a firearms dealer licence, had he applied for one at the time his licence was revoked. As a result there was no ground upon which Mr Esber's firearms dealer licence could be revoked under s 24(2)(a). The Commissioner was incorrect in finding that he had a conviction for a prescribed offence. 37 The Commissioner also relied on the general discretion to revoke licence in the public interest found in cl.19 of Firearms Regulation 2006. In the internal review significant emphasis was placed on the public interest in equal treatment of applicants for firearms licences, and the fact that persons with a conviction for possession of child pornography are ineligible a for firearms dealer licence. While this statement was true at the time of the internal review, applicants for a firearms dealer licence at that time Mr Esber's licence was revoked were not subject to a mandatory refusal on the ground of a conviction for possession of child pornography. 38 Contrary to the assertions made in the internal review, I am not satisfied that Mr Esber's licence was issued in error. There is no apparent inequity in allowing Mr Esber to retain his licence, when a similar applicant for the same licence at the time his licence was revoked would have been entitled to the licence. 39 Ms Duvall for the Commissioner argued that the fact of Mr Esber's conviction for possession of child pornography pointed to a public interest in his licence being revoked. Mr Esber argued that there was no relevant connection between his offences and his occupation as a firearms dealer. I spent some time discussing with Ms Duvall whether such a connection exists, and am not persuaded that there is such a connection. By its nature the work of a firearms dealer does not involve dealing with or interaction with children. Aside from general opprobrium with which the public views such offences, she could not point me to any direct public interest which required a revocation of Mr Esber's licence. 40 Not for publication Conclusion 41 In my view the correct and preferable decision in this case is to set aside the Commissioner's decision to revoke Mr Esber's firearms dealer licence. 42 Mr Esber should be aware that his firearms dealer licence will expire on 23 June 2013. At that time, should the law remain as it is now, he will have no accrued right to have any new application for firearms dealer licence considered under the previous law, and will likely face a mandatory refusal, as 10 years will not have passed since his conviction. 43 In order to maintain the confidentiality of the confidential material and evidence given in this proceeding I order that that paragraph 40 of these reasons not be disclosed to anyone other that the Respondent, or otherwise published.

Esber v Commissioner of Police, NSW Police Force

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