Relief
78The decision of the Appeal Panel to reject the appeal to it left on foot the order of the judicial member as set out at [2] above.
79The nature of the issue raised before the Tribunal was unclear. The material taken into account identified at [8] above did not readily accord with the material addressed by the Commissioner in either the delegate's original refusal notice or in the statement of reasons on the internal review. The Tribunal recorded at [12] a concession by the Commissioner, apparently directed to the two convictions (in 1988 and 1992) and the charges on which the applicant was found guilty but not convicted (in 2000 and 2008) as constituting spent convictions. The Commissioner's submission, also identified at [12], was that those spent convictions "or" the conduct underlying them (perhaps meaning "and") could be taken into account "under the Firearms Act". The Tribunal accepted that they could not be considered for the purposes of s 11(3)(a): at [20]. The Tribunal accepted, however, that the constraints imposed by s 12 did not operate with respect to the consideration of the public interest under s 11(7) of the Firearms Act. What was not explored was how the four matters relied upon could be taken into account under s 11(7) if the Tribunal were not satisfied that the application had to be rejected under s 11(3)(a), without regard to those matters.
80Given the lack of attention to these considerations in the Tribunal and before the Appeal Panel, the absence of any precise form of relief sought in this Court and the interlocutory nature of the proceedings in the Tribunal, it is not appropriate for the Court to attempt to formulate in the abstract some form of declaratory relief. The Tribunal hearing the matter will have the benefit of this Court's analysis of the legislation. It is not clear that any legal issue of the kind which might be the subject of an appeal against a final order of the Appeal Panel will arise at the substantive hearing of the matter in the Tribunal. If it does, and either party seeks to allege error of law, the matter can come back for consideration by reference to findings of fact and a crystallised issue of law.
81In these circumstances, the better approach is to dismiss the appeal and the cross appeal. As noted above, there will be no order as to costs.
82LEEMING JA: I agree with the reasons and conclusions of Basten JA. I wish to add the following, wholly consistently with his Honour's reasons, on the principal question argued, being the relationship between s 12 of the Criminal Records Act 1991 (NSW) and s 11 of the Firearms Act 1996 (NSW). As Basten JA observes, the starting point is construing each provision.
83Although the premise of all of s 12 of the Criminal Records Act is that a person has a spent conviction, its three paragraphs apply in two distinct ways. Paragraph (a) confers a privilege upon a person, in respect not merely of the spent conviction, but more broadly, to "information concerning the spent conviction". In contrast, paragraphs (b) and (c) are interpretative, and operate more narrowly. Paragraph (b) applies to "questions" asked of the person's criminal history, and requires such a question to be read as not referring to the spent conviction. Paragraph (c) applies to certain "references" in provisions of an Act or statutory instrument, and requires those references to be construed in a particular way. A reference to a conviction is taken to be a reference to convictions which are not spent convictions, and a reference to character or fitness is not to be interpreted as permitting or requiring account to be taken of a spent conviction.
84On the other hand, subsections 11(3) and (7) of the Firearms Act are both substantive. Each is a qualification upon the general power to issue a licence conferred by subsection 11(1). Subsection (3) imposes a further precondition to the exercise of the power to issue a licence; it amounts to a mandatory ground for refusal. Subsection (7) creates an additional discretionary ground for refusal, and it follows from its opening words that even if none of the grounds for mandatory refusal in the section apply, the discretionary power to do so remains available, if the Commissioner considers that the issue of the licence would be contrary to the public interest.
85Two things are immediately apparent. The first is the differential operation of the paragraphs of s 12. The differential operation of s 12(a) on the one hand, as opposed to s 12(b) and (c) on the other, undermines some of the submissions advanced in relation to the "anomaly" between the conviction on the one hand, and the conduct underlying it on the other. On the face of the statutory language, the privilege conferred by paragraph (a) extends to the underlying conduct, while the interpretative rules required by paragraphs (b) and (c) are expressed textually, in respect of "references" in questions and provisions of Acts and statutory instruments. It would be wrong to construe s 12 as if each of its paragraphs applied identically only to spent convictions, or identically to spent convictions and the conduct underlying them, for that would be to elide the textual distinction expressly drawn in the provision. Further, the textual difference between the paragraphs supports the reasoning and conclusion of Basten JA under the heading "The underlying conduct".
86Secondly, once it is appreciated that s 12(c) is an interpretative provision, whose subject matter is the legal meaning to be given to provisions in other Acts or statutory instruments, the Commissioner's submissions directed to implied repeal fall away. Subsections 11(3) and (7) qualify the Commissioner's power; s 12(c) instructs how references to particular words in Acts and statutory instruments are to be construed. Those provisions may readily be read together.
87It was common ground that implied repeal requires "very strong grounds" and that the law presumes that statutes do not contradict one another: see for example Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 at [4], [18], [108]-[109] and Commissioner of Police v Eaton [2013] HCA 2; 87 ALJR 267 at [45]-[48]. It will be difficult to identify an intention to displace the presumption that the two laws made by the one legislature are intended to work together when, as here, s 12(c) has no independent operation and presupposes the existence of another Act or statutory instrument whose interpretation it affects. When one law is interpretative while the other creates rights, it will be difficult to conclude that the latter has impliedly repealed the former.
88Another way of analysing the position, which to my mind is preferable, and indeed potentially more favourable to the Commissioner, is to observe that s 12(c) amounts to a statutory definition in a generally applicable interpretation provision, to the effect that "conviction" bears a special meaning. It would follow that the question is not one of implied repeal, but whether the Firearms Act discloses a contrary intention so as to displace the interpretative provision: Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [40] (McColl JA, Beazley JA agreeing); Melrose Farm Pty Ltd v Milward [2008] WASCA 175; (2008) 175 IR 455 at [7] (Pullin J) and [51] (Le Miere J, Steytler P agreeing). For example, if the question is whether references to a "person" in the Firearms Act extend to corporations and bodies corporate or politic in accordance with s 21 of the Interpretation Act 1987 (NSW), the question is not whether s 21 is impliedly repealed pro tanto, but whether the Firearms Act discloses a contrary intention so as to displace the extended meaning which s 21 would otherwise give to the word "person".
89Even so, there is no sound basis in s 11(3) for a contrary intention. There is nothing express in its language. There is no basis for an implication that the Firearms Act is a comprehensive and exhaustive code so as to exclude general interpretative provisions. Contrary to the Commissioner's submissions, the principles and objects in s 3 of the Firearms Act are expressed at too high a level of generality to assist: cf Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [6].
90Further, as Basten JA has observed in detail, the legislative history points powerfully against the Commissioner's construction. There was a close counterpart to s 11(3) in s 25 of the Firearms Act 1989 (NSW). The subsequent re-enactment of the latter provision in s 11(3) of the Firearms Act strongly supports the conclusion that the pieces of legislation are to be read together.
91Ultimately, the question amounts to whether, on some basis, s 11(3) impliedly excludes the rule of interpretation of general application established by s 12(c) of the Criminal Records Act. It does not do so. The provisions are readily read together.
92Similar considerations mean that the relationship between s 11(7) and s 12(c) is readily resolved. Section 12(c) operates textually, by imposing an interpretative rule on particular references in Acts and statutory instruments. I would acknowledge that if an Act or statutory instrument used different language to denote the same concept as "character or fitness" (for example, "suitability" or "fit and proper") then it would be at least arguable that the same interpretative rule applied (although decisions such as Goliath Portland Cement Co Ltd v Chief Executive of Customs [2000] FCA 1164; 101 FCR 11 at [29] illustrate that the position may not necessarily be straightforward). However, there is no reference to "character or fitness" in s 11(7), and forming a view that the issue of a licence is "contrary to the public interest" is a very different concept. Indeed, as is clear from the reasoning in Commissioner of Police v Eaton at [27] and [70], "public interest" itself can mean quite different things in different contexts. But it is sufficient for present purposes to observe that it is different from the concept of "fit and proper and can be trusted ..." in s 11(3). Hence s 12(c) does not apply to s 11(7) directly. It is not to the point that an applicant's character or fitness may be relevant to a consideration of the public interest, for s 12(c) applies at the textual level.
93Finally, can the application of the s 12(c) interpretative rule to s 11(3) be relevant to the construction of s 11(7), such that spent convictions to which the Commissioner may not have regard in the former cannot be relied on in the latter? I do not consider that this assists Mr Kocic. It is to be recalled that subsections (3) and (7) are each qualifications upon the same power to issue a licence conferred by s 11(1). The opening words of s 11(7) ("Despite any other provision of this section") tell against a construction where the exclusion of some matters from one qualification upon power impliedly operates to exclude the same matters from a separate and overriding qualification to the power.
94WHITE J: I agree that leave to appeal and leave to cross-appeal should be granted, notwithstanding that, as Basten JA has observed, the case provides an unattractive vehicle for considering the issues raised.
95The decision of Isenberg JM that was the subject of the appeal to the Appeal Panel is set out at para [2] of Basten JA's reasons.
96Isenberg JM also reached the following conclusion that appears also to be a "decision" and was the subject of submissions by the Commissioner before the Appeal Panel and this Court:
"[20] ... the proper interpretation of s. 12(c) of the CR Act is that neither the Applicant's spent convictions nor the conduct underlying the charges giving rise to those spent convictions is to be considered in applying the 'fit and proper person' test in the Firearms Act."
97Earlier in her reasons Isenberg JM said that:
"[4] This decision relates to the preliminary issue of whether the spent convictions and the s 10 matters are properly to be taken into account in reaching a decision about whether the Applicant is a fit and proper person or whether the issue of the licence would be contrary to the public interest: s 11(3)(a) and s 11(7) of the Act, respectively."
98The decisions are a hybrid between a determination of the relevance of material proposed to be tendered and the determination of separate, but not specifically formulated, issues for separate determination.
99The procedure adopted in this case should not be encouraged. That is so for five reasons. First, however the preliminary issues are determined, the application to the Tribunal will not be resolved. The issues might also be academic. As Basten JA has observed (at [10] and [11]), the delegate for the Commissioner asserted that Mr Kocic had been convicted of other offences, including firearms offences in 2001. There was no argument before this Court, nor, it seems, before the Appeal Panel as to whether any of those other convictions were or were not spent. The argument rather proceeded on the basis that there were some spent convictions and the question was whether the Tribunal was entitled to have regard to any of them, or to the conduct which was the subject of any of them, for any, and if so, which, purpose. The spent convictions might play little or no role in the Tribunal's ultimate decision whatever the decision on the preliminary issues.
100The second difficulty with the procedure adopted is that the issues have been framed too narrowly. The question of what use can be made of spent convictions might arise not only in relation to the application of s 11(3)(a) and s 11(7) of the Firearms Act. It might also arise in relation to the assessment of the genuineness of the stated reasons for which the firearms licence was sought (s 12(1) of the Firearms Act) and in relation to the exercise of the discretion under s 11(1). The decisions do not address those matters.
101Thirdly, the parties did not agree on the consequence of the decision that the spent convictions, and the conduct underlying those convictions, could be had regard to under s 11(7) of the Firearms Act. Mr Kocic submitted that the public interest discretion under s 11(7) could only operate in areas to which the "character" ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal (Commissioner for Police v Toleaofa [1999] NSWADTAP 9 at [25]). The Commissioner contends that the public interest ground is not so limited. The Appeal Panel held that this was a question for the Tribunal to decide on remittal (at [38]).
102Fourthly, the substantive hearing in the Tribunal has been delayed whilst the parties have debated preliminary issues. There remains the prospect that the party who is ultimately unsuccessful in the Tribunal may seek leave to appeal, or be entitled to appeal on a question of law, to the Appeal Panel of the Civil and Administrative Tribunal, with the possibility of yet further applications to this court. The course taken is not consistent with the quick, cheap and just resolution of the real issues in the proceedings.
103Fifthly, it is undesirable that the issues raised by this case be determined in the abstract (Wickstead v Browne (1992) 30 NSWLR 1 at 5).
104Nonetheless, although the course adopted in the Tribunal was not appropriate, leave to appeal and cross-appeal should be given. The delay and additional expense occasioned by the splitting off of abstract issues has already been incurred. The damage would not be undone by the refusal of leave. To the contrary, if this Court were not to express its views on the issues raised, the prospect of further appeals from the ultimate decision of the Tribunal would be enhanced. The time spent and expense incurred by the parties in providing full submissions as on an appeal would be wasted.